in Re Robert S. Hoffman and Law Office of Robert S. Hoffman PLLC ( 2014 )

ACCEPTED
14-14-01021-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
14-14-01021-CV 12/29/2014 10:03:31 PM
CHRISTOPHER PRINE
CLERK
No. _______________-CV
First or Fourteenth Court of Appeals FILED IN
14th COURT OF APPEALS
at Houston HOUSTON, TEXAS
12/29/2014 10:03:31 PM
CHRISTOPHER A. PRINE
Clerk
In re
Robert S. Hoffman and
Law Office of Robert S. Hoffman PLLC,
Petitioners.
Original proceeding from the
61st District Court of Harris County
Trial Court No. 2014-17523
Petition for Writ of Mandamus
Cunningham Darlow LLP The Olson Firm PLLC
Tom Alan Cunningham Leif A. Olson
State Bar No. 05244700 State Bar No. 24032801
tcunningham@ leif@olsonappeals.com
cunninghamdarlow.com PMB 188
Debbie C. Darlow 4830 Wilson Road, Suite 300
State Bar No.05186900 Humble, Texas 77396
ddarlow@cunninghamdarlow.com (281) 849-8382
919 Milam, Suite 575
Houston, Texas 77002
(713) 255-5500
Petitioners request oral argument
Parties and Counsel
Defendants-petitioners
Robert S. Hoffman Cunningham Darlow LLP
Law Office of Robert S. Tom Alan Cunningham
Hoffman, PLLC State Bar No. 05244700
tcunningham@
cunninghamdarlow.com
Debbie C. Darlow
State Bar No.05186900
ddarlow@cunninghamdarlow.com
919 Milam, Suite 575
Houston, Texas 77002
(713) 255-5500
Counsel in trial court and on petition
The Olson Firm PLLC
Leif A. Olson
State Bar No. 24032801
leif@olsonappeals.com
PMB 188
4830 Wilson Road, Suite 300
Humble, Texas 77396
(281) 849-8382
Counsel on petition
Plaintiff-real party in interest
Rachel Brown Williamson, Sears & Rusnak
Jimmy Williamson
State Bar No. 21624100
jimmy@iimmywilliamson.com
Cyndi M. Rusnak
State Bar No. 24007964
cyndi@jimmywilliamson.com
ii
Ross A. Sears II
State Bar No. 17960011
ross@searscrawford.com
4310 Yoakum Boulevard
Houston, Texas 77006
(713) 223-3330
Defendants
Marshall Davis Brown, Jr. Pavlas & Brown LLP
Jedediah D. Moffett Marshall Davis Brown, Jr.
Pavlas & Brown, LLP State Bar No. 03153550
Pavlas, Brown & York LLP mdbrown@pavlasbrown.com
Jedediah D. Moffett, P.C. 3040 Post Oak Blvd., Suite 1020
Houston, Texas 77056
(713) 222-2500
Jedediah D. Moffett, P.C.
Jedediah D. Moffett
State Bar No. 24051069
jdm@moffettpc.com
801 Congress, Suite 400
Houston, Texas 77002
(713) 333-5800
Respondent
Judge Al Bennett 61st District Court
201 Caroline, 9th Floor
Houston, Texas 77002
(713) 368-6070
iii
Table of Contents
Parties and Counsel.............................................................................ii
Index of Authorities .......................................................................... vii
Statement of the Case ........................................................................ xi
Statement on Oral Argument ............................................................ xii
Statement on Jurisdiction.................................................................. xii
Glossary ............................................................................................ xii
Issue Presented ................................................................................ xiii
Introduction ........................................................................................ 1
Facts ................................................................................................... 1
A. The underlying divorce case. .................................................... 1
B. This malpractice case. ............................................................... 2
1. The claims. .......................................................................... 2
2. The petition. ........................................................................ 3
C. This discovery dispute. ............................................................. 4
Summary of Argument ....................................................................... 5
Standard of Review ............................................................................. 7
Argument: Absent a showing that Brown is entitled to exemplary damages,
ordering discovery of net worth was an abuse of discretion. ........................8
A. The petition’s allegations are insufficient. .................................8
B. Requiring Hoffman to disclose net worth now is premature. ... 11
C. The law on exemplary damages has evolved; the Court
should chart the impact that evolution has made on net-
worth discovery. ...................................................................... 13
1. The proper standard. ......................................................... 13
2. The current standard. ........................................................ 14
iv
3. The Court can announce the current standard. .................. 16
D. Requiring Hoffman to wait until appeal to protect his privacy
would be inadequate and rob the courts of guidance. ............... 17
Conclusion and Prayer ...................................................................... 19
Verification .......................................................................................20
Certificate of Compliance .................................................................20
Certificate of Service ........................................................................20
v
Record Contents
Document Tab
First Amended Petition ....................................................................... 1
Hoffman’s disclosures (insurance policy omitted) ...............................2
Brown’s disclosures ............................................................................ 3
Brown’s Request for Production No. 52 ..............................................4
Hoffman’s Response to Request for Production No. 52 ....................... 5
Brown’s motion to compel .................................................................. 6
Hoffman’s response to Brown’s motion to compel .............................. 7
Hearing transcript ............................................................................... 8
Proposed order compelling production ............................................... 9
Hoffman’s motion to bifurcate .......................................................... 10
Docket-control order......................................................................... 11
Chart of net-worth discovery standards in other jurisdictions ........... 12
vi
Index of Authorities
Cases
Al Parker Buick Co. v. Touchy
788 S.W.2d 129
(Tex. App. – Houston [1st Dist.] 1999) (orig. proceeding) ...9, 10, 14
Arpin America Moving Systems, LLC, In re
416 S.W.3d 927 (Tex. App. – Dallas 2013) .................................... 17
BMW of North America, Inc. v. Gore
517 U.S. 559 (1996)....................................................................... 15
Booth, In re
No. 14-14-00637-CV, 2014 WL 5796726
(Tex. App. – Houston [14th Dist.] Oct. 21, 2014, mand. dismissed)
..................................................................................................... 17
Brewer Leasing, Inc., In re
255 S.W.3d 708 (Tex. App. – Houston [1st Dist.] 2008) ............... 17
Carpenter v. Carpenter
No. 02-11-00266-CV, 2012 WL 2579498
(Tex. App. – Fort Worth July 5, 2012, pet. denied)........................ 9
Cerberus Capital Management, L.P., In re
164 S.W.3d 379, 382 (Tex. 2005) .................................................... 7
Citizens Supporting Metro Solutions, Inc., In re
No. 14-07-00190-CV, 2007 WL 4277850
(Tex. App. – Houston [14th Dist.] Oct. 18, 2007) .......................... 8
CSX Corp., In re
124 S.W.3d 149 (Tex. 2003) ............................................................ 7
Earle v. Ratliff
998 S.W.2d 882 (Tex. 1999)........................................................... 8
Ernst & Young LLP v. Pacific Mutual Life Ins. Co.
51 S.W.3d 573 (Tex. 2001) ............................................................ 10
vii
Eurecat US, Inc., In re
425 S.W.3d 577 (Tex. App. – Houston [14th Dist.] 2014) ............... 8
Exxon Shipping Co. v. Baker
554 U.S. 471 (2008) ..................................................................... 16
Garth, In re
214 S.W.3d 190 (Tex. App. – Beaumont 2007) .............................. 17
Hodge v. Northern Trust Bank of Texas, N.A.
54 S.W.3d 518 (Tex. App. – Eastland 2001, pet. denied) ................ 8
House of Yahweh, In re
266 S.W.3d 668 (Tex. App. – Eastland 2008)........................... 16, 17
Huie v. DeShazo
922 S.W.2d 920 (Tex. 1996) (orig. proceeding) ............................... 7
Islamorada Fish Co. Texas, L.L.C., In re
319 S.W.3d 908 (Tex. App. – Dallas 2010) .................................... 11
Jacobs, In re
300 S.W.3d 35
(Tex. App. – Houston [14th Dist.] 2009, mand. dismissed) ... passim
Jacobs, In re
No. 09-0942 (Tex., dismissed Aug. 13, 2010) ......................... 18, 19
Jerry’s Chevrolet-Buick, Inc., In re
977 S.W.2d 565 (Tex. 1998) ..................................................... 15, 18
Kim, In re
No. 05-14-01344-CV, 2014 WL 6556269
(Tex. App. – Dallas Oct. 23, 2014) ............................................... 17
Kimball Hill Homes Texas, Inc., In re
969 S.W.2d 522 (Tex. App. – Houston [14th Dist.] 1998) .............. 9
Lunsford v. Morris
746 S.W.2d 471 (Tex. 1988) (orig. proceeding)..................... 7, 13, 17
viii
Maresca v. Marks
362 S.W.2d 299 (Tex. 1962) (orig. proceeding) ............................. 10
Prudential Insurance Co. of America, In re
148 S.W.3d 124 (Tex. 2004) ............................................................ 7
Reece, In re
341 S.W.3d 360 (Tex. 2011) ............................................................ 7
Sears, Roebuck & Co. v. Ramirez
824 S.W.2d 558 (Tex. 1992) (orig. proceeding) ............................. 14
State Farm Mutual Auto Ins. Co. v. Campbell
538 U.S. 408 (2003) ..................................................................... 15
Team Rocket, L.P., In re
256 S.W.3d 257 (Tex. 2008).......................................................... 18
Tilton v. Marshall
925 S.W.2d 672 (Tex. 1996) (orig. proceeding) ............................. 10
Tony Gullo Motors I, L.P. v. Chapa
212 S.W.3d 299 (Tex. 2006) ......................................................... 16
Transportation Ins. Co. v. Moriel
879 S.W.2d 10 (Tex. 1994) ............................................................ 14
Van Waters & Rogers, Inc., In re
145 S.W.3d 203 (Tex. 2004).......................................................... 17
Walker v. Packer
827 S.W.2d 833 (Tex. 1992) (orig. proceeding) ......................... 7, 18
Wal-Mart Stores, Inc. v. Alexander
868 S.W.2d 322 (Tex. 1993) .......................................................... 17
Weekley Homes, L.P., In re
295 S.W.3d 309 (Tex. 2009) ......................................................... 11
Statutes
Tex. Civ. Prac. & Rem. Code § 41.001 ................................... 10
Tex. Civ. Prac. & Rem. Code § 41.003...................... 4, 9, 14, 15
ix
Tex. Civ. Prac. & Rem. Code § 41.008 .................................. 14
Tex. Civ. Prac. & Rem. Code § 41.009 ............................. 11, 14
Tex. Civ. Prac. & Rem. Code § 41.011 .............................. 11, 15
Tex. Govt. Code § 22.201 .......................................................... xii
Tex. Govt. Code § 22.221 .......................................................... xii
Tex. Govt. Code § 24.163 .......................................................... xii
Rules
Tex. Const. art. V, § 6(a).............................................................. xii
Tex. R. Civ. P. 192, cmt. 1 ............................................................. 8
Tex. R. Civ. P. 192.4 .................................................................... 11
Other authorities
McLoughlin, James
Necessity of Determination or Showing of Liability for Punitive
Damages Before Discovery or Reception of Evidence of Defendant’s
Wealth
32 A.L.R. 4th 432 (2014)............................................................... 13
x
Statement of the Case
Nature of the case Discovery dispute in a legal-malpractice case.
Trial court 61st District Court, Harris County
Judge Al Bennett
Trial court Brown sued the lawyers, including Hoffman,
proceedings who represented her in her divorce case. Her
petition alleged no facts that would support a
finding of exemplary damages. 1 Nor did she
establish a prima facie case that she was enti-
tled to those damages.
Brown requested that Hoffman produce doc-
uments showing his net worth.2 Hoffman ob-
jected.3 Brown moved to compel.4
Trial court The trial court overruled Hoffman’s objec-
disposition tions and ordered him to produce documents
showing his net worth. 5
Relief sought The Court should direct the trial court to
vacate its order compelling production.
1
Tab 1, First Amended Petition.
2
Tab 4, Brown’s Request for Production No. 52.
3
Tab 5, Hoffman’s Response to Request for Production No. 52.
4
Tab 6, Brown’s motion to compel.
5
Tab 8, transcript, at 13:19–15:16.
xi
Statement on Oral Argument
This petition concerns an issue, discovery of a party’s net worth,
that has been evolving steadily over the last several years. Oral argu-
ment would give the Court the opportunity to explore with counsel the
current state and direction of the law and the reasons why the trial
court’s order compelling production was an abuse of its discretion on
these specific facts.
Statement on Jurisdiction
The Court has jurisdiction to issue a writ of mandamus to a district
court that sits in a county within the Court’s district. Tex. Const.
art. V, § 6(a); Tex. Govt. Code §§ 22.201(b), (o); 22.221(b);
24.163.
Glossary
Hoffman Relators Robert S. Hoffman and Law Office of
Robert S. Hoffman, P.L.L.C.
Tab x Mandamus record at Tab x
xii
Issue Presented
A plaintiff demanded documents showing a defend-
ant’s net worth. Her petition alleged no specific facts
that would support a finding of exemplary damages,
and the trial court had not determined that she had
made a prima facie showing that she could recover
them. Did the trial court abuse its discretion in order-
ing the defendant to furnish that private information?
xiii
Introduction
A person’s net worth is an intensely personal matter. Texas’s court
rules and jurisprudence make that sensitive information confidential;
litigants cannot uncover it except in circumstances that are tightly
bounded. Here, the plaintiff justified her request for that information
based on two sentences tucked into a 27-page petition:
• “Defendants’ breach was done with the requisite state of
mind for which an imposition of exemplary damages is au-
thorized.”6
• “Plaintiff … is entitled to damages which include … Punitive
damages for gross negligence and breach of fiduciary du-
ty[.]”7
Can these two scraps of text justify an order that a lawyer expose
his net worth to a former client? No, they cannot. The trial court’s de-
cision to the contrary was an abuse of discretion. The Court should
mandate that the order be vacated.
Facts
A. The underlying divorce case.
Rachel Brown’s divorce from Dr. Michael Brown was, to under-
state, a matter of some notoriety. Brown’s dispute with her husband
6
Tab 1, First Amended Petition, at ¶ 23.
7
Tab 1 at ¶ 79D.
spread like mold in a Houston summer. From it emerged two bank-
ruptcies, other “related litigation,” an imprisonment, a media frenzy,
and an ex-wife — and that’s limiting it to what Brown mentions in her
petition in this case. 8
Robert S. Hoffman and his law firm, the Law Office of Robert S.
Hoffman, P.L.L.C., were among the lawyers who represented Brown
in this miasma. Not surprisingly, that representation required a lot of
time, and thus a lot of fees. A court-appointed special master reviewed
and approved all of those fees; the divorce court reviewed them, ap-
proved them, and, in several orders, directed them paid. Brown’s hus-
band (and, later, his bankruptcy estate) reviewed them and paid them. 9
B. This malpractice case.
1. The claims.
Brown now challenges all of that. Though she has fractured the
claim, she sues Hoffman and her other divorce counsel for legal mal-
practice. Her primary argument is that the fees, though considered,
approved, and awarded by now-final court orders, were excessive. 10
8
Tab 1 at ¶ 18.a, h, l, y, z (legal actions); b (prison); i, k (media); gg (ex-wife).
9
Tab 2, Hoffman’s disclosures, at p. 3; Tab 3, Brown’s disclosures, at, e.g., Q.3,
¶¶ 35, 44, 98–119, 187–189, 204.
10
Tab 1 at ¶ 18(e), (n)–(t), (bb)–(dd), (ff ), (hh)–(ii).
2
Hoffman believes that Brown’s claims are barred as a matter of law
by, among other things, claim and issue preclusion, collateral estoppel,
the law of the case, the compulsory-counterclaim rule, and limita-
tions. 11 He plans to seek summary judgment on those bases. With her
underlying claims eliminated, Brown would have no right to recover
exemplary damages and, thus, no need for net-worth discovery.
2. The petition.
Brown’s petition is 27 pages long. Many of those pages allege that
Hoffman acted “below the standard of care” for a lawyer. 12 Not one of
them alleges facts that would support a gross-negligence finding; the
only negligence they suggest is ordinary. Brown claims gross negli-
gence, and thus exemplary damages, solely through her statement that
Hoffman acted with the “requisite state of mind[.]” 13 Nowhere in her
27 pages of pleading does she explain that opaque statement — what
those actions were or how they demonstrated anything.
11
Hoffman hasn’t yet amended his answer to assert these defenses.
12
Tab 1 at pp. 4–8.
13
Tab 1 at ¶ 23.
3
C. This discovery dispute.
Brown requested “a copy of all documents showing the net worth
of Defendants, individually and Defendants’ law firm.” 14 Hoffman ob-
jected. Among other reasons:
• The information was irrelevant;
• The request was premature;
• Brown’s petition didn’t support a right to recover exemplary
damages;
• There was no evidence of fraud, malice, or gross negli-
gence; 15
• The information was confidential, sensitive, and private, and
producing it would be unduly prejudicial; and
• Equity weighed against production. 16
Brown moved to compel on two bases: the information was relevant
and it was improper to delay net-worth discovery until after the first
phase of a bifurcated trial. 17 Hoffman’s response repeated his objec-
tions and pointed the trial court to Justice Sullivan’s concurring opin-
ion in In re Jacobs, which traced net-worth discovery from its first
14
Tab 4 at p. 6.
15
See Tex. Civ. Prac. & Rem. Code § 41.003.
16
Tab 5.
17
Tab 6 at p. 2.
4
permitted use in 1988 through the contemporary present of 2009 and
urged that net-worth requests be examined anew in light of twenty
years of intervening jurisprudence. 18
After a hearing, the trial court ordered Hoffman to turn over doc-
uments related to his net worth by January 15. 19 Hoffman now peti-
tions for a writ of mandamus directing that the trial court’s order be
vacated.
Summary of Argument
Demanding information on a person’s net worth “provides an op-
portunity for ‘needless abuse and harassment;’” compelling a person
to disclose that information can be done only when it is relevant and
through the least intrusive methods. Jacobs, 300 S.W.3d at 46. The
amount of a person’s wealth is private and sensitive. The intrusion into
Hoffman’s privacy that the trial court ordered is both untimely and
unnecessary.
That order was an abuse of discretion. Mandamus is appropriate
for three reasons.
18
Tab 7 at ¶ 5, citing 300 S.W.3d 35, 47–52 (Tex. App. – Houston [14th Dist.]
2009, mand. dismissed) (Sullivan, J., concurring).
19
Tab 8, transcript, at 13:19–15:16. See also Tab 9, proposed order. The trial court
hasn’t yet signed a written order.
5
First, a person’s net worth is discoverable only if a petition alleges
facts sufficient to show an entitlement to exemplary damages. Brown’s
allegation, that Hoffman had the “requisite state of mind,” doesn’t.
Without a factual basis for her claim, Hoffman’s net worth is irrele-
vant. Compelling Hoffman to disclose that information was an abuse
of discretion.
Second, even if Brown’s allegations weren’t insufficient, the dis-
covery is premature. In a bifurcated trial like this one, net worth is ad-
missible only in the second trial phase. If Brown never gets to that
phase, Hoffman’s net worth will never be relevant, and irrelevant in-
formation isn’t discoverable. Delaying production of net-worth infor-
mation until that phase becomes a realistic possibility would properly
balance the parties’ interests. Ordering production before that point
isn’t the least intrusive method of obtaining that information. It was an
abuse of discretion.
Third, Texas is out of step with her sister states. Twenty-five years
ago, Texas left the dwindling minority of states that barred net-worth
discovery. Now, Texas is in the dwindling minority of states that re-
quires nothing more than allegations to justify this invasion of privacy.
As Justice Sullivan recognized when he concurred in Jacobs, and as the
Supreme Court recognized when it granted review in that case, the
contours of net-worth discovery in Texas are still fuzzy. A review of
Texas’s law, rules, and experience counsel that Texas jurisprudence
6
has moved to join that of her sister states. The Court should recognize
and announce that development.
The Court should mandate that the trial court vacate its order.
Standard of Review
Mandamus is appropriate when a trial court abuses its discretion
and a remedy through appeal would be inadequate. In re Reece, 341
S.W.3d 360, 364 (Tex. 2011); In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 135–36 (Tex. 2004). A trial court can abuse its discretion
in two ways. It can make a decision so arbitrary and unreasonable that
it is a clear and prejudicial error, and it can analyze or apply the law in-
correctly. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.
2005), citing Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992)
(orig. proceeding). An order permitting discovery that exceeds the lim-
its of the Texas Rules of Civil Procedure is just such an abuse of dis-
cretion. In re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003).
The trial court has no discretion to get the law wrong, even if the
law is unsettled. Huie v. DeShazo, 922 S.W.2d 920, 927–29 (Tex. 1996)
(orig. proceeding), see also Lunsford v. Morris, 746 S.W.2d 471 (Tex.
1988) (orig. proceeding).
7
Argument:
Absent a showing that Brown is entitled to exemplary damages,
ordering discovery of net worth was an abuse of discretion.
A. The petition’s allegations are insufficient.
The scope of discovery is “confined by the subject matter of the
case[.]” Tex. R. Civ. P. 192, cmt. 1. This is “axiomatic;” the “live
pleadings regarding the pending claims” set the bounds of discovery.
In re Eurecat US, Inc., 425 S.W.3d 577, 585 (Tex. App. – Houston [14th
Dist.] 2014) (McCally, J., dissenting), citing In re Citizens Supporting
Metro Solutions, Inc., No. 14-07-00190-CV, 2007 WL 4277850 at *3
(Tex. App. – Houston [14th Dist.] Oct. 18, 2007). Net-worth discovery
is thus proper only if a live petition properly alleges a claim for exem-
plary damages. See Jacobs, 300 S.W.3d at 43–44.
Texas requires only notice pleadings, but mere recitations are insuf-
ficient. Slapping the name of a claim onto a petition doesn’t mean that
the plaintiff has actually brought that claim. It is the allegations, not
the names given to the cause of action, that control. Slapping “DTPA”
onto negligence allegations doesn’t permit a recovery under the
DTPA; slapping “breach of contract” onto allegations of conversion
doesn’t avoid summary judgment on the shorter statute of limitations.
Earle v. Ratliff, 998 S.W.2d 882, 892–93 (Tex. 1999) (DTPA); Hodge v.
N. Trust Bank of Tex., N.A., 54 S.W.3d 518, 522–23 (Tex. App. –
Eastland 2001, pet. denied) (conversion). Similarly, slapping the word
8
“fraud” onto a claim concerning construction defects doesn’t turn it
into a tort claim that can avoid mandatory arbitration of construction-
defect claims, nor does it save a plaintiff from summary judgment on
limitations when his cause of action is for conversion. In re Kimball
Hill Homes Tex., Inc., 969 S.W.2d 522, 526 (Tex. App. – Houston [14th
Dist.] 1998) (construction defect); Carpenter v. Carpenter, No. 02-11-
00266-CV, 2012 WL 2579498 at *4–5 (Tex. App. – Fort Worth July 5,
2012, pet. denied) (conversion).
Brown is a word-slapper. She slapped “exemplary damages” into
her petition, but she didn’t “allege facts showing [Hoffman] liable for
punitive damages.” Al Parker Buick Co. v. Touchy, 788 S.W.2d 129, 130–
31 (Tex. App. – Houston [1st Dist.] 1999) (orig. proceeding). She had
to go beyond her liability allegations and make “express allegations of
willfulness, malice, or gross negligence[.]” Jacobs, 300 S.W.3d at 43.
She didn’t. Her only exemplary-damages allegation is that Hoffman
acted with the “state of mind for which … exemplary damages [are]
authorized.” Tab 1 at ¶ 23.
This is triply empty. First, it doesn’t even accuse Hoffman himself
of that culpability; Brown states it generally about all seven defend-
ants. Second, it doesn’t actually accuse Hoffman of a state of mind
necessary to create exemplary liability — of gross negligence, fraud, or
malice. See Tex. Civ. Prac. & Rem. Code § 41.003(a). Third, it
alleges no facts that would show that Hoffman acted with the neces-
9
sary attitude. She alleges no specific intent to hurt someone, no ex-
treme risk, no actual awareness of that risk, no conscious disregard, no
falsities, and no knowingly wrongful activity, and she alleges no fact
that would permit an inference of those. Id. at §§ 41.001(7), (11) (ele-
ments of gross negligence and malice); Ernst & Young LLP v. Pac. Mut.
Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001) (elements of fraud). With-
out those express allegations, Brown doesn’t “allege a basis for the as-
sessment of punitive damages” and can’t recover them; Hoffman’s
“net worth is not a ‘relevant matter,’” and net-worth discovery “has
no probative value” and must be denied. Al Parker Buick, 788 S.W.2d
at 131.
The wealth a person holds, and the ends to which he directs it, are
matters whose privacy is of constitutional importance. Maresca v.
Marks, 362 S.W.2d 299, 301 (Tex. 1962) (orig. proceeding); Tilton v.
Marshall, 925 S.W.2d 672, 683 (Tex. 1996) (orig. proceeding). Once
Hoffman must yield his information to Brown, the violation of his pri-
vacy is complete; its intimacy can’t be recaptured. The potential for
abusing this information is great. Permitting it to be compelled on alle-
gations as flimsy as Brown’s will tempt those who seek improper lever-
age in a lawsuit and furnish another weapon to those who use the legal
system for improper ends. Mandamus is proper to correct the trial
court’s error in compelling production of this private information
10
when Brown isn’t entitled to it. See In re Islamorada Fish Co. Tex.,
L.L.C., 319 S.W.3d 908, 912 (Tex. App. – Dallas 2010).
B. Requiring Hoffman to disclose net worth now is premature.
A trial court has discretion to manage its docket, including the “se-
quence, timing and scope of discovery to minimize burden, maximize
efficiency, and protect privacy rights.” Jacobs, 300 S.W.3d at 52 (Sulli-
van, J. concurring). The trial court’s docket-control order, Tab 11, sets
this case’s schedule. “[T]rial courts should be mindful of protecting
sensitive information and utilize the least intrusive means necessary to
facilitate discovery.” Jacobs, 300 S.W.3d at 46, citing In re Weekly
Homes, L.P., 295 S.W.3d 309, 321 (Tex. 2009). That includes ensuring
the correct timing, as well as scope, of discovery. That is especially
true where, as here, bifurcation reserves certain issues for later — and
possibly, depending on the case, for never. Tex. Civ. Prac. &
Rem. Code §§ 41.009, 41.011(b); Tab 10, motion to bifurcate.
A court should reject discovery if its benefit outweighs the burden
of producing it. Tex. R. Civ. P. 192.4(b). That balance won’t tilt
toward Brown until the trial court decides Hoffman’s motion for
summary judgment. It is only then that Brown will have a need for
Hoffman’s net-worth information because it is only then that she will
know whether there is even the possibility that exemplary-damages
claims will be tried.
11
All of the legal fees paid to Hoffman in the divorce case — the fees
about which Brown complains — were first reviewed by her husband
and his counsel, reviewed and found “reasonable and necessary” by a
special master, and then approved and ordered paid by the divorce
court. That Hoffman received payment only after that gantlet suggests
that there will be insufficient evidence as a matter of law that Hoffman
knew, disregarded the possibility, or intended that his acts were wrong-
ful. This in turn suggests that there will be no right to exemplary dam-
ages, and no right to information on Hoffman’s wealth.
Brown should not be allowed to traipse through Hoffman’s private
and sensitive financial information when that information will likely
never be at issue. Even if the issue were to remain live after summary
judgment, the docket-control order, Tab 11, gives Brown enough time
to explore Hoffman’s net worth before trial. The trial court can protect
Hoffman’s privacy until breaching it is necessary; it had a duty to do
so. Its order that Hoffman expose that information at this stage of the
case represents a failure to analyze and apply the law properly. It is an
abuse of discretion, and it should be vacated.
12
C. The law on exemplary damages has evolved; the Court
should chart the impact that evolution has made on net-
worth discovery.
1. The proper standard.
The proper balance between disclosure and privacy is struck by re-
quiring a prima-facie showing of entitlement to punitive damages be-
fore net-worth discovery is allowed. That position would shield a par-
ty’s sensitive, private information on his wealth until the plaintiff
crosses the speedbump of a prima-facie case. This shields privacy until
unclothing that information is appropriate to the case — that is, until a
showing that the benefits to the proponent outweigh the detriment to
the opponent. This position would also align Texas with most of her
sister states. 20 However, the Supreme Court’s most recent word is that
net worth can be discovered when pleadings are appropriate, so that
step is reserved for that court. Jacobs, 300 S.W.3d at 41–42; Lunsford,
746 S.W.2d at 473.
20
Texas is in the minority of jurisdictions permitting net-worth discovery with-
out an evidentiary showing. Other states require a prima facie showing of gross
negligence, or more, before permitting net-worth discovery. See Tab 12, listing
authorities from other jurisdictions. See also James McLoughlin, Annotation,
Necessity of Determination or Showing of Liability for Punitive Damages Before
Discovery or Reception of Evidence of Defendant’s Wealth, 32 A.L.R. 4th 432
(2014) (analyzing requirements from other jurisdictions).
13
2. The current standard.
But this Court can recognize how Texas jurisprudence has evolved
in the twenty-five years since that announcement. And the evolution,
in both statute and common law, demonstrates that the constraints on
net-worth discovery can be made sharper:
• Texas courts concluded that, unlike other discovery, which
can be used to uncover potential claims, net-worth discovery
is proper only if the plaintiff has sufficiently alleged an enti-
tlement to exemplary damages, Al Parker Buick, 788 S.W.2d
at 131;
• The Supreme Court admonished that private financial doc-
uments aren’t discoverable if their net-worth evidence can be
obtained elsewhere and expressed its reluctance to allow
“uncontrolled” net-worth discovery, Sears, Roebuck & Co. v.
Ramirez, 824 S.W.2d 558, 559 (Tex. 1992) (orig. proceeding);
• The Supreme Court concluded that gross negligence re-
quires a specific mental state and should be found only “in
the most exceptional cases,” Transp. Ins. Co. v. Moriel, 879
S.W.2d 10, 18, 21–22 (Tex. 1994);
• The Legislature heightened the evidentiary requirement for
exemplary damages to the clear-and-convincing standard,
mandated that defendants be allowed to sever the liability
and exemplary-damages phases of a trial, and capped the
amount of exemplary damages, Tex. Civ. Prac. & Rem.
Code §§ 41.003(a)–(b), 41.009, 41.008;
14
• The Legislature made net worth one of only six factors appli-
cable in an exemplary-damages calculation, Tex. Civ.
Prac. & Rem. Code § 41.011(a);
• Two justices of the Supreme Court (including the current
Chief Justice) stated that they agreed with a requirement that
plaintiffs make a prima-facie showing of entitlement to re-
cover exemplary damages and noted that that court “had yet
to address when and on what basis” disclosure of net-worth
information should be allowed, In re Jerry’s Chevrolet-Buick,
Inc., 977 S.W.2d 565, 565–66 (Tex. 1998) (Gonzalez, J.,
joined by Hecht, J., dissenting from denial of petition);
• The United States Supreme Court recognized that the Con-
stitution limits the amount of exemplary damages that a
court can award, BMW of N. Am., Inc. v. Gore, 517 U.S. 559,
580–82 (1996), and held that “few awards exceeding a single-
digit ratio between punitive and compensatory damages”
would withstand a due-process challenge and that a 4:1 ratio
“might be close to the line of constitutional impropriety,”
State Farm Mut. Auto Ins. Co. v. Campbell, 538 U.S. 408, 425
(2003);
• The Legislature required unanimous findings on both liabil-
ity for, and the amount of, those damages, Tex. Civ.
Prac. & Rem. Code § 41.003(d);
• The Supreme Court concluded that a 4.3:1 ratio in a con-
sumer-fraud case was unconstitutional, in part because
“[p]ushing exemplary damages to the absolute constitutional
limit in a case like this leaves no room for greater punishment
in cases involving death, grievous physical injury, financial
ruin, or actions that endanger a large segment of the public,”
15
Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310 (Tex.
2006);
• The Supreme Court agreed with the U.S. Supreme Court
that the reprehensibility of the defendant’s conduct, not the
defendant’s net worth, was the most important factor in de-
termining the propriety of exemplary damages, id. at 307–08;
• Texas courts concluded that discovery seeking past net
worth instead of current net worth was improper, In re House
of Yahweh, 266 S.W.3d 668, 673 (Tex. App. – Eastland 2008);
• The United States Supreme Court concluded that the limit
for exemplary damages under maritime law was an amount
equal to the compensatory damages, Exxon Shipping Co. v.
Baker, 554 U.S. 471, 512–14 (2008); and
• Texas courts concluded that proper net-worth discovery was
limited to questions regarding (a) the party’s current net
worth and (b) the facts and methods used to calculate that
number, Jacobs, 300 S.W.3d at 46.
3. The Court can announce the current standard.
Courts have left some blazes identifying the limits of permissible
net-worth discovery, but those blazes have yet to be mapped as a trail.
A plaintiff’s ability to recover exemplary damages has narrowed, but
none have yet charted the narrows — finding them not at trail’s end,
leading to the jury, but at the trailhead, leading to discovery. The
Court’s synthesis of these markers doesn’t create new law; it assem-
bles multiple data into a single guide that will help better protect the
16
privacy and seclusion that deviations from the trail would otherwise
invade.
These battles over net-worth discovery are frequent. 21 A single
guide delineating the standard that has emerged since Lunsford will
help standardize trial- and appellate-court rulings. It will lessen the
roulette that defendants must play when a plaintiff demands to extract
information about their finances. The Court should analyze the rela-
tive benefits and burdens that net-worth discovery creates, incorporate
that analysis into an explication of the governing law, and apply that
explanation to this dispute and grant the petition for mandamus.
D. Requiring Hoffman to wait until appeal to protect his privacy
would be inadequate and rob the courts of guidance.
Hoffman’s privacy and the confidentiality of his finances can’t be
adequately protected by an appeal. “An appeal is inadequate when par-
ties are in danger of permanently losing substantial rights.” In re Van
Waters & Rogers, Inc., 145 S.W.3d 203, 211 (Tex. 2004). The compelled
21
See, e.g., In re Booth, No. 14-14-00637-CV, 2014 WL 5796726 (Tex. App. –
Houston [14th Dist.] Oct. 21, 2014, mand. dismissed); In re Kim, No. 05-14-
01344-CV, 2014 WL 6556269 (Tex. App. – Dallas Oct. 23, 2014); In re Arpin
Am. Moving Sys., LLC, 416 S.W.3d 927, 929 (Tex. App. – Dallas 2013); Jacobs,
300 S.W.3d at 47–52; House of Yahweh, 266 S.W.3d at 674; In re Brewer Leasing,
Inc., 255 S.W.3d 708, 713 (Tex. App. – Houston [1st Dist.] 2008); In re Garth,
214 S.W.3d 190, 194 (Tex. App. – Beaumont 2007); Wal-Mart Stores, Inc. v. Al-
exander, 868 S.W.2d 322, 331 (Tex. 1993) (Gonzalez, J. concurring).
17
production of privileged or confidential information cannot be correct-
ed by an ordinary appeal because the privilege will have long been
pierced and the information, once disclosed, stripped of confidentiali-
ty. Walker, 827 S.W.2d at 843.
By the time an appeal could correct the trial court’s order, Hoff-
man’s privacy rights will have been vitiated. At a minimum, Brown and
her counsel will know Hoffman’s net worth — even though they
should not. No appeal can put that genie back in the bottle. Mandamus
is the only way to protect Hoffman’s privacy.
Moreover, mandamus review “allow[s] the appellate courts to give
needed and helpful direction to the law that would otherwise prove
elusive in appeals from final judgments.” In re Team Rocket, L.P., 256
S.W.3d 257, 262 (Tex. 2008). Justices Gonzalez and Hecht recognized
the need for guidance sixteen years ago. Jerry’s Chevrolet-Buick, 977
S.W.2d at 565–66. Justice Sullivan recognized in 2009 that Texas liti-
gants who seek or must answer net-worth discovery “are entitled to
greater clarity and predictability.” Jacobs, 300 S.W.3d at 52. The Su-
preme Court recognized the same thing when it set argument in Jacobs
in 2010. In re Jacobs, No. 09-0942, Order Setting Oral Argument (Tex.
June 18, 2010).
The Supreme Court dismissed Jacobs as moot when that case’s
plaintiffs withdrew their net-worth discovery requests and stipulated
that they wouldn’t ask for the information again. Id., Motion to Dis-
18
miss at 2–3 (Tex.) (filed July 9, 2010); id., Order Dismissing Case
(Tex. Aug. 13, 2010). In doing so, they suffocated the chance that an
opinion in that case would bring clarity. This case enables the Court to
furnish the guidance that is now four more years overdue.
Conclusion and Prayer
Relators Robert S. Hoffman and the Law Office of Robert S. Hoff-
man P.L.L.C. pray that the Court issue a writ of mandamus directing
the trial court to vacate its order compelling production of net-worth
information; award them the costs they incur before the Court; and
grant all other relief to which they may be entitled.
Respectfully submitted,
The Olson Firm PLLC
/s/ Leif A. Olson
Leif A. Olson
State Bar No. 24032801
leif@olsonappeals.com
PMB 188
4830 Wilson Road, Suite 300
Humble, Texas 77396
Cunningham Darlow LLP
Tom Alan Cunningham
State Bar No. 05244700
tcunningham@
cunninghamdarlow.com
Debbie C. Darlow
State Bar No.05186900
19
ddarlow@cunninghamdarlow.com
919 Milam, Suite 575
Houston, Texas 77002
Counsel for petitioners
Verification
I certify in accordance with Texas Rule of Appellate Procedure
52.3(j) that I have reviewed this petition and have concluded that eve-
ry factual statement made in it is supported by competent evidence in-
cluded in the record.
/s/ Leif A. Olson
Certificate of Compliance
I certify that this brief was prepared with Microsoft Word 2013,
and that, according to that program’s word-count function, the sec-
tions covered by Texas Rule of Appellate Procedure 9.4(i)(1) contain
3,995 words.
/s/ Leif A. Olson
Certificate of Service
I certify that on December 29, 2014, in accordance with Texas Rule
of Appellate Procedure 9.5(b), I served by electronic filing a copy of
this petition and the mandamus record upon:
Jimmy Williamson
Cyndi M. Rusnak
Ross A. Sears II
Williamson, Sears & Rusnak
4310 Yoakum Boulevard
Houston, Texas 77006
(713) 223-3330
/s/ Leif A. Olson
20
No. _______________-CV
First or Fourteenth Court of Appeals
at Houston
In re
Robert S. Hoffman and
Law Office of Robert S. Hoffman PLLC,
Petitioners.
Original proceeding from the
61st District Court of Harris County
Trial Court No. 2014-17523
Mandamus Record
Cunningham Darlow LLP The Olson Firm PLLC
Tom Alan Cunningham Leif A. Olson
State Bar No. 05244700 State Bar No. 24032801
tcunningham@ leif@olsonappeals.com
cunninghamdarlow.com PMB 188
Debbie C. Darlow 4830 Wilson Road, Suite 300
State Bar No.05186900 Humble, Texas 77396
ddarlow@cunninghamdarlow.com (281) 849-8382
919 Milam, Suite 575
Houston, Texas 77002
(713) 255-5500
Petitioners request oral argument
Record Contents
Document Tab
First Amended Petition ....................................................................... 1
Hoffman’s disclosures (insurance policy omitted) ...............................2
Brown’s disclosures ............................................................................ 3
Brown’s Request for Production No. 52 ..............................................4
Hoffman’s Response to Request for Production No. 52 ....................... 5
Brown’s motion to compel .................................................................. 6
Hoffman’s response to Brown’s motion to compel .............................. 7
Hearing transcript ............................................................................... 8
Proposed order compelling production ............................................... 9
Hoffman’s motion to bifurcate .......................................................... 10
Docket-control order......................................................................... 11
Chart of net-worth discovery standards in other jurisdictions ........... 12
Tab 1
First Amended Petition
9/16/2014 8:45:17 AM
Chris Daniel - District Clerk Harris County
Envelope No. 2501485
By: Arron Sonnier
CAUSE NO. 2014-17523
R. BROWN § IN THE DISTRICT COURT OF
§
vs. § HARRIS COUNTY, T EXA S
§
M. D. BROWN, JR., §
INDIVIDUALLY, ET AL § 61ST JUDICIAL DISTRICT
PLAINTIFF'S FIRST AMENDED PETITION, INCLUDING APPLICATION FOR
TEMPORARY INJUNCTION, AND PERMANENT INJUNCTION
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES Plaintiff, R. BROWN, (hereinafter sometimes referred to as "R. Brown"),
complaining of M. D. BROWN, JR., INDIVIDUALLY, also referred to as "D. BROWN",
PAVLAS BROWN & YORK, L.L.P., PAVLAS & BROWN, L.L.P., JEDEDIAH D.
MOFFET, INDIVIDUALLY, JEDEDIAH D. MOFFET, P.C., ROBERT S. HOFFMAN,
INDIVIDUALLY, and LAW OFFICE OF ROBERT S. HOFFMAN, P.L.L.C. hereinafter
sometimes referred to collectively as Defendants, and for cause of action would respectfully show
unto the Court and Jury as follows:
I.
DISCOVERY CONTROL PLAN
I. Pursuant to the provisions of Texas Rule of Civil Procedure 190.4, Plaintiff
proposes to conduct discovery according to Discovery Control Plan Level 3, and therefore requests
this Court to enter a scheduling order which includes a discovery deadline date.
Page I of27
II.
JURISDICTION AND VENUE
2. This case is brought under Texas state law. The amount in controversy exceeds the
minimum jurisdictional limits of this Court. This court has subject matter jurisdiction over this
cause. This is a cause of action that is brought under Texas state law as a result of the negligence
and breach of fiduciary duty of the defendants. All of the causes of action asserted herein are
asserted under Texas state law and the duty that is imposed upon persons practicing law within the
State of Texas and giving legal advice, counsel and assistance to clients. This is a cause of action
brought by Plaintiff against her attorneys for breach of their professional obligations under state
law. Venue is appropriate because the Defendants work and/or reside in Harris County, Texas,
and part or all of the actions complained of took place in Harris County.
III.
PARTIES
3. Plaintiff is a resident citizen of Harris County, Texas.
4. Defendant, M. D. BROWN, JR., has appeared and answered herein.
5. Defendant, PAVLAS BROWN & YORK, L.L.P., has appeared and answered
herein.
6. Defendant, PAVLAS & BROWN, L.L.P., has appeared and answered herein.
7. Defendant, JEDEDIAH D. MOFFETT has appeared and answered herein.
8. Defendant, JEDEDIAH D. MOFFETT, P.C., has appeared and answered herein.
9. Defendant, ROBERT S. HOFFMAN has appeared and answered herein.
10. Defendant, LAW OFFICE OF ROBERT S. HOFFMAN, P.L.L.C., has appeared
and answered herein.
Page2 of27
IV.
FACTS
11. Defendants were attorneys practicing law within the State of Texas at all relevant
times herein. From approximately August 20 I 0 to present, Defendants had an attorney/client
relationship withPlaintiff. Defendants had an attorney/client relationship withPlaintiff that dealt
with, among other things, handling her divorce (her husband is now deceased), and all matters
concerning her rights and interests, and subsequent and concurrent litigation. Such divorce was
filed on or around January 7, 2011, as CauseNo. 2011-01272 in the 246'h Judicial District Court
of Harris County, Texas (hereinafter sometimes referred to as the "divorce"). During the time
Defendants represented Plaintiff in the divorce, Defendants were Plaintiffs attorneys and
counselors in a multitude of other matters.
12. During the time complained of, Defendants were practicing law within theState of
Texas and were held to the duty of any reasonable practitioner of law within theState of Texas.
Namely, during this period of time, Defendants had an attorney/client Relationship withPlaintiff
and owed her a fiduciary duty at all times during this point in time. In connection with that,
Defendants owed her a duty of candor, loyalty, trust, fidelity andfull disclosure. The duty is one
that is imposed by the special relationship of trust and confidence. As such, Plaintiff entrusted
Defendants with her legal matters, including specifically, legal matters relating to her divorce.
13. At no time during this period of time didDefendants deny that they had a fiduciary
duty toPlaintiff. At no time during this time period didDefendants take the position that they did
not have an attorney/client relationship withPlaintiff. At no time didDefendants take the position
that they were not assisting or were unable to assist on any of the litigation matters or render advice
regarding the underlying divorce on behalf ofPlaintiff. To the contrary, during this period of time,
Page3 of27
Defendants represented to Plaintiff that they were qualified, that they had an attorney/client
relationship with Plaintiff, that they were content and happy to work upon Plaintiffs legal matters,
that they were able to do so, and that they had an ongoing attorney/client relationship with Plaintiff
in the underlying divorce. As such, Defendants had an ongoing duty as attorneys to Plaintiff and
also had an ongoing duty as a fiduciary to Plaintiff.
14. Defendants failed to act in the best interests of Plaintiff.
15. As a result of Defendants' actions, Plaintiff incurred damages, including
unnecessary legal fees and a gross diminishing of the community estate.
v.
CAUSES OF ACTION
16. Plaintiff fully incorporates the above by reference.
A. Legal Malpractice
17. Defendants, as Plaintiffs attorneys, owed Plaintiff a legal duty. This duty was
established by the attorney-client contract representation of Plaintiff. Defendants' breached that
duty. Defendants' breach proximately caused Plaintiffs actual damages.
B. Negligence
18. The Defendants' acts constituted a departure from that which an attorney of
ordinary prudence would do under the same or similar circumstances. As such, the Defendants
are liable for negligence. In particular, however, Plaintiff would show that Defendants were
negligent and/or breached their fiduciary duty in connection with one or more of the following
particulars:
a) Defendants put themselves in a position where they were a priority creditor in bankruptcy,
whereas Plaintiff is an unsecured creditor;
Page 4 of27
b) Defendants agreed to release the husband from jail for the payment of a relatively minor
sum, when that was probably the best opportunity to negotiate a settlement, or at least
recover some benefit for Plaintiff, rather than Defendants;
c) Defendants did not relay settlement opportunities received from the opposing side to
Plaintiff and did not ever encourage Plaintiff to settle, even after it was clear or should have
been clear that the community estate was running out of money;
d) Defendants had a conflict of interest by representing a previous ex-wife at the same time
Defendants were representing Plaintiff without making full disclosure;
e) Defendants had a conflict of interest in seeking their own attorney's fees before seeking
recovery for Plaintiff;
f) Defendants failed to inform the trial court with specificity that the husband was committing
"fraud on the community" and failed to request/obtain relief from the court;
g) Defendants failed to plead and pursue subsequent and concurrent litigation (e.g., Cause No.
4: 13-003365), properly under the Fraudulent Transfers Act;
h) Defendants failed to seek remedies with zeal from the divorce and bankruptcy courts to
stop the husband's dissipation of assets of the community estate, or obtain adequate remedy
for their client;
i) Defendants failed to keep Plaintiffs information private and confidential and provided
information to the press that was not helpful to Plaintiff and, caused damage to Plaintiff;
j) Defendants engaged in public and private conduct such as calling opposing counsel
disparaging names; this was unbecoming to the profession and damaging to Plaintiffs
interests;
Page 5 of27
k) Defendants made multiple statements to the media without the consent of Plaintiff
regarding the status of various legal matters, her private life, and even regarding opposing
counsel, which were self-serving and did nothing to further the interests of Plaintiff;
1) Defendants failed to exercise reasonable and ordinary care to protect Plaintiffs interests in
the divorce, the husband's bankruptcy, and concurrent and subsequent related litigation;
m) Defendants failed to maintain adequate communication with Plaintiff;
n) Defendants engaged in a course of action to prolong litigation and increase billable time;
o) Defendants overcharged Plaintiff for their services and ran up unnecessary fees;
p) Defendants never sent Plaintiff billing statements;
q) Defendants' fees were exorbitantly large, compared to any recovery made by Plaintiff;
r) Defendants never considered the conflict of interest between their interests and the client's
interest;
s) Defendants failed to oppose or object to the excessive fees billed by Amicus attorney,
Master in Chancery, experts or any other person or entity;
t) Defendants overbilled, double billed, and excessively billed Plaintiff;
u) Defendants never attended mediation and refused to engage in meaningful settlement
discussions;
v) Defendants failed to Pursue Settlement Opportunities;
w) Defendants failed to provide proper disclosures to their client;
x) Defendants disclosed confidential information to third parties without authorization from
their client;
Page 6 of27
y) Defendants provided inadequate representation to their client on issues brought into the
bankruptcy court and failed to preserve and defend their client's rights in that venue;
z) Defendants agreed to the CRO agreement in the bankruptcy court and failed to object to
the CRO agreement in Florida;
aa) Defendants filed a claim in the bankruptcy court in their own names, when such claim
belonged to their client;
bb) Defendants failed to advise their client regarding the billings against the community estate
by third parties and opposing counsel, resulting in overburdening of the community estate;
cc) Defendants failed to reign in or curtail the exorbitant fees being charged by third parties,
specifically including expert witnesses;
dd) Defendants incurred exorbitant, unreasonable, security costs in connection with the
divorce, and incurred exorbitant, extraneous unrelated security costs, all of which was
billed at their client's expense;
ee) Defendants gave improper, unreasonable, and unrealistic tax advice and failed to provide
proper disclosures and recommendations regarding tax consequences to their client;
ff) Defendants charged all of their attorney's fees in connection with the defense of a lawsuit
by Michael Brown related to intellectual property rights to their client;
gg) Defendants undertook representation of Darlina Barone on matters involving her ex­
husband, Michael Brown, which directly impacted the community estate of Michael Brown
and Rachel Brown, while simultaneously representing Rachel Brown in her divorce from
Michael Brown, and failed to adequately disclose the conflict resulting from the
simultaneous representation to Rachel Brown;
Page 7 of27
hh) Defendants' placed their own interests ahead of their client's interest; and
ii) Defendants engaged in multiple and repeated acts of unnecessary billing and overbilling.
19. Each of the above and foregoing acts constituted negligence and fell below the
standard of care for attorneys in Texas and were a proximate cause of the damage to Plaintiff.
C. Disgorgement
20. Attorneys' fees paid to Defendants exceeded reasonable and customary fees.
21. Defendants' interest was to make money for themselves, and they placed their
interests ahead of Plaintiff's. All fees should be disgorged.
D. Breach of Fidnciary Dnty
22. Defendants' errors and omissions, as set forth herein, also breached their fiduciary
duty. Defendants are therefore liable for breach of fiduciary duty. Defendants, by placing their
own interests ahead of the Client, ran up excessive and unnecessary legal fees that were
unconscionable, put their financial interest ahead of their client, and as such should be reduced or
forfeited pursuant to the applicable law.
23. A fiduciary relationship existed between Plaintiff and Defendants. Defendants
owed a duty of loyalty and utmost good faith to Plaintiff. Defendants breached their fiduciary duty
to Plaintiff by the acts and omissions alleged herein. Plaintiff was injured by Defendants' breach
and Defendants' benefited from their breach of duty. Defendants' breach was done with the
requisite state of mind for which an imposition of exemplary damages is authorized.
E. Respondeat Superior, Agency and Restatement (Second) of Torts
24. Further, Plaintiff would show that Defendant, M. D. Brown, Jr., (also known as D.
Brown), was at the time of the occurrence made the basis of this lawsuit an agent, servant,
Page 8 of 27
representative, or employee of Defendants, Pavlas Brown & York, L.L.P. and Pavlas & Brown,
L.L.P. At all times related to the instant lawsuit, Defendant, M. D. Brown's, acts and/or omissions
were in the course and scope of his employment and/or agency. Accordingly, Plaintiff has sued
Defendants, Pavlas Brown & York, L.L.P. and Pavlas & Brown, L.L.P., for all damages caused
by the negligence of Defendant, M. D. Brown, Jr., under the doctrine ofrespondeat superior.
25. Additionally, Defendants, Pavlas Brown & York, L.L.P. and Pavlas & Brown,
L.L.P., are liable for the damages caused by the negligence of the individual Defendant under the
agency doctrines of apparent authority, ostensible agency, and agency by estoppel. Alternatively,
Defendants, Pavlas Brown & York, L.L.P. and Pavlas & Brown, L.L.P., are liable for the damages
caused by the negligence of the Defendant, M. D. Brown, Jr., under Section 429 of the Restatement
(Second) of Torts.
26. Further, Plaintiff would show that Defendant, Jedediah D. Moffett, was at the time
of the occurrence made the basis of this lawsuit an agent, servant, representative, or employee of
Jedediah D. Moffett, P.C.. At all times related to the instant lawsuit, Defendant, Jedediah D.
Moffett's acts and/or omissions were in the course and scope of his employment and/or agency.
Accordingly, Plaintiff has sued Defendant Jedediah D. Moffett, P.C., for all damages caused by
the negligence of its employee, Defendant, Jedediah D. Moffett under the doctrine ofrespondeat
superior.
27. Additionally, Defendant, Jedediah D. Moffett, P.C., is liable for the damages
caused by the negligence of the individual Defendant under the agency doctrines of apparent
authority, ostensible agency, and agency by estoppel. Alternatively, Defendant, Jedediah D.
Moffett, P.C., is liable for the damages caused by the negligence of the Defendant, Jedediah D.
Moffett under Section 429 of the Restatement (Second) of Torts.
Page 9 of27
28. Further, Plaintiff would show that Defendant, Robert S. Hoffman, was at the time
of the occurrence made the basis of this lawsuit an agent, servant, representative, or employee of
The Law Office of Robert S. Hoffman, P.L.L.C.. At all times related to the instant lawsuit,
Defendant, Robert S. Hoffman's acts and/or omissions were in the course and scope of his
employment and/or agency. Accordingly, Plaintiff has sued Defendant The Law Office of Robert
S. Hoffman, P.L.L.C., for all damages caused by the negligence of its employee, Defendant, Robert
S. Hoffman, under the doctrine of respondeat superior.
29. Additionally, Defendant, The Law Office of Robert S. Hoffman, P.L.L.C. is liable
for the damages caused by the negligence of the individual Defendant under the agency doctrines
of apparent authority, ostensible agency, and agency by estoppel. Alternatively, Defendant, The
Law Office of Robert S. Hoffman, P.L.L.C., is liable for the damages caused by the negligence of
the Defendant, Robert S. Hoffman under Section 429 of the Restatement (Second) of Torts.
30. Furthermore, to the extent that Defendants Pavlas Brown & York, LLP, Pavlas &
Brown, LLP, Jedediah D. Moffett, P.C., and The Law Office of Robert S. Hoffman, P.L.L.C.
knowingly participated in the breach of fiduciary duty by M.D. Brown, Jr., Jedediah D. Moffett
and Robert S. Hoffman, they become a joint tortfeasor with the fiduciary and are liable as such.
F. Conspiracy to Breach Fiduciary Dnty
31. Plaintiff incorporates by reference all preceding paragraphs as if fully set forth
herein. To prove conspiracy, Plaintiff must establish the object of the combination was to
accomplish(!) an unlawful purpose or (2) a lawful purpose by unlawful means. The Plaintiff must
show that at least one of the named defendants was liable for an underlying tort. The basis of a
conspiracy claim is the damage resulting from the commission of the tort, not the conspiracy itself.
Page 10 of27
Plaintiff, Rachel Brown asserts claims for conspiracy to breach fiduciary duty as to all Defendants.
All Defendants conspired to commit all of the above described acts and omissions.
G. Additional Causes of Action
32. Defendants were in all probability negligent in other respects in addition to the
above and foregoing and Plaintiff reserves the right to amend her pleading to conform to the
evidence and to plead more specifically acts or omissions in the future as they become known.
33. Each and all of the foregoing acts and omissions were a violation of the standards
of care applicable to attorneys, were negligence, and were a proximate cause of the damages
sustained by Plaintiff and of the damages set forth below.
34. COMES NOW Rachel Brown, (hereinafter referred to as "Rache11") filing this
Application for Temporary Restraining Order, Temporary Injunction and Permanent Injunction,
and would show the Court the following:
VI.
APPLICATION FOR TEMPORARY INJUNCTION AND PERMANENT INJUNCTION
35. COMES NOW Rachel Brown2, (hereinafter referred to as "Rache13") filing this
Application for Temporary Restraining Order, Temporary Injunction and Permanent Injunction,
and would show the Court the following:
Sec. 65.011. GROUNDS GENERALLY. A writ of injunction may be granted if:
(I) the applicant is entitled to the relief demanded and all or part of the relief
requires the restraint of some act prejudicial to the applicant;
(2) a party performs or is about to perform or is procuring or allowing the
performance of an act relating to the subject of pending litigation, in violation of
the rights of the applicant, and the act would tend to render the judgment in that
litigation ineffectual;
1 The names are confusing. Rachel Brown was married to, and filed divorce proceeding, against Dr. Michael Brown,
now deceased (sometimes referred to, for clarity, as the "Husband". One of her attorneys, Marshall Davis Brown, Jr.
shares the same last name (although no relation). So, reference names have been chosen to avoid confusion.
Page 11 of27
(3) the applicant is entitled to a writ of injunction under the principles of equity
and the statutes of this state relating to injunctions;
(4) a cloud would be placed on the title of real property being sold under an
execution against a party having no interest in the real property subject to execution
at the time of sale, irrespective of any remedy at law; or
(5) irreparable injury to real or personal property is threatened, irrespective of any
remedy at law.
Texas Civ. Prac. & Rem Code§ 65.011.
A temporary injunction's purpose is to preserve the status quo of the litigation's
subject matter pending a trial on the merits. Walling v. Metcalfe, 863 S.W.2d 56,
57 (Tex.1993); Electronic Data Sys. Corp. v. Powell, 508 S.W.2d 137, 139
(Tex.Civ.App.-Dallas 1974, no writ)...To obtain a temporary injunction, the
applicant must plead and prove three specific elements: (1) a cause of action against
the defendant; (2) a probable right to the relief sought; and (3) a probable,
imminent, and irreparable injury in the interim. Walling, 863 S.W.2d at 57; Sun Oil
Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex.1968).
Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002).
36. To be entitled to a temporary injunction pending trial on the merits, the petitioner
must demonstrate: (i) a cause of action against the respondent; (ii) a probable right to relief; and
(iii) a probable, imminent and irreparable injury in the interim. Mabreyv. Sandstream, 124 S.W.3d
302, 309 (Tex.App. - Fort Worth 2003, no pet.). Plaintiff has reason to believe that if, while the
case is pending, Defendants are allowed access to the funds, Defendants will disburse same, and
Plaintiff will lose forever the ability to capture said funds. The damages sought in this case could
potentially exceed $10 million, if the jury and/or court allow for total fee forfeiture, and none of
the defendants have the financial wherewithal to satisfy such a judgment. In fact, two of the three
defendants have no E&O coverage. Thus, Plaintiff will be irreparably harmed because of
Defendants' conduct, for which Plaintiff will have no adequate remedy at law. Plaintiff therefore
requests that this Court enter a temporary injunction against Defendants, their agents,
representatives, servants, attorneys, and all persons acting in concert with Defendants, prohibiting
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them from having any contact with or control over the disputed funds, and that the funds are
immediately deposited into the registry of this Court. At the conclusion of this case, Plaintiff
requests the Court to enter an order releasing the funds from the registry of the court to her.
37. The purpose of a preliminary injunction is to preserve the status quo pending a final
decision on the merits of the case. See, Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. I 993);
Niko/ouzos v. St. Luke's Episcopal Hosp., 162 S.W.3d 678, 683 (Tex.App. - Houston [141h Dist.]
2005, no pet.); see also Pierce v. State, 184 S.W.3d 303, 306-7 (holding that an asset freeze that
prevented the defendant from continuing to make unauthorized charges on customers' credit cards
preserved the status quo.). The status quo is the "last, actual, peaceable, non-contested status that
preceded the pending controversy." State v. Southwestern Bell Tel. Co., 526 S.W.2d 526, 528
(Tex. 1975); see Sharma v. Vinmar Int'/, Ltd., 231 S.W.3d 405, 419 (Tex.App.-Houston [14th
Dist.] 2007, no pet.); see also Houston Compressed Steel Corp. v. State, 456 S.W.2d 768, 773
(Tex. Civ. App.--Houston [1'1 Dist.] 1970, no writ); Rattikin Title Co. v. Grievance Committee,
272 S.W.2d 948 (Tex. Civ. App.-- Forth Worth 1954, no writ).
38. The movant must show a probable right to final relief after trial. A party seeking a
temporary injunction must not only plea a cause of action justifying injunctive relief; it must also
prove a probable right to the relief sought. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex.
2002). This does not mean proof that would result in a victory at final trial, but something more
than a prima facie case. See Tri-Star Petroleum Co. v. Tipperary Corp., IOI S.W.3d 583
(Tex.App. - El Paso 2003, no writ) (trial court's issuance of a temporary injunction was affirmed
because the trial court could have rationally determined that the evidence supported the movant's
claims). The probable right of recovery element encompasses the wrongful conduct. Inex. Indus.,
Inc. v. A/par Res., Inc., 717 S.W.2d 685, 687-88 (Tex. App. - Amarillo 1986, no writ). There is
Page 13 of27
enough evidence, if taken as true, to show a reasonable likelihood of success on at least some of
the claims. See Sands v. Estate ofBuys, 160 S.W.3d 684, 687 (Tex.App.-Fort Worth 2005, no pet.)
(temporary injunction applicant" need not establish that it will finally prevail" at trial, but it must
provide "some evidence" that" tends to support" its cause of action).
39. To be adequate, a remedy must provide the applicant complete, final and equal
relief. Frequent Flyer Depot, Inc. v. Am. Inc., 281 S.W.3d 215, 229 (Tex. App. - Fort Worth,
2009, pet. denied); Henderson v. KRTS, Inc., 822 S.W.2d 769, 773 (Tex. App. - Houston [I st Dist.]
1992, no writ); Miller v. K & M P'ship, 770 S.W.2d 84, 87 (Tex. App. - Houston [I st Dist.] 1989,
no writ); Ferguson v. Herring, 49 Tex. 126 (1878).
40. A remedy may also be inadequate if the party to be restrained is incapable of
responding in damages due to insolvency. SRS Prods. Co. v. LG Eng'g Co., Ltd., 994 S.W.2d 380,
386 (Tex.App. - Houston [141h Dist.] 1999, no pet). It is permissible to freeze assets when the
defendant is insolvent or likely to be insolvent at the time a judgment is rendered. See e.g., Deckert
v. Indep. Shares Corp., 311 U.S. 282, 289, (1940) (party seeking injunction to preserve assets or
their proceeds that are subject to a pied equitable remedy such as rescission, constructive trust, or
restitution); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (party seeking injunction
to enjoin assets that form basis of underlying suit, i.e., right to the asset is basis of suit); Khaledi
v. HK. Global Trading, Ltd., 126 S.W.3d 273, 278-79 (Tex.App.-San Antonio 2003, no pet.)
(party seeking injunction has security interest in asset sought to be enjoined); Nowak v. Los Patios
Investors, Ltd., 898 S.W.2d 9, 11 (Tex.App. - San Antonio 1995, no writ) (citing Teradyne, Inc.
v. Mostek Corp., 797 F.2d 43, 45 (!st Cir.1986) (party seeking injunction to enjoin assets
specifically set aside for purpose of satisfying potential judgment in underlying suit)).
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41. "The general rule at equity is that before injunctive relief can be obtained, it must
appear that there does not exist an adequate remedy at law. This limitation, however, has no
application where the right to reliefis predicated on a statutory ground other than on the general
principles of equity." Butnaru v. Ford Motor Co., 84 S.W.3d 198, 210 (Tex. 2002)(quoting
Republic Insurance Co. v. 0'Donnell Motor Co., 289 S.W. 1064, 1066 (Tex.Civ.App. -Dallas
1926, no writ).
42. Injunctions are equitable remedies, and a trial court will weigh the respective
conveniences and hardships of the parties and balance the equities. See Indian Beach Prop.
Owner's Ass'n v. Linden, 222 S.W.3d 682, 690 (Tex.App. - Houston [1''Dist.] 2007, no pet.);
Surko Enters., Inc. v. Borg-Warner Acceptance Corp., 782 S.W.2d 223, 225-26 (Tex.App.­
Houston [1st Dist.] 1989, no writ).
43. Federal applicants for injunctive relief include somewhat different standards, such
as: (i) that the threatened injury outweighs any damage that might result from the injunction;
and (ii) that the injunction will not disserve the public interest. Affiliated Prof Home Health
Care Agency v. Shala/a, 164 F .3d 282, 285-86 (5'h Cir. 1999); Harris County, Tex. v. CarMax
Auto Superstores, Inc., 177 F.3d 306, 312 (5'h Cir. 1999).
44. Marshall Davis Brown, Jr., Pavlas Brown, L.L.P.; Robert S. Hoffman, Law Offices
of Robert S. Hoffman, P.L.L.C., Jedediah D. Moffett, and Jedediah D. Moffett, P.C., (the
"Attorney Defendants") are defendants this action. Rachel brought this action against the
Attorney Defendants for breach of fiduciary duty, negligence, and disgorgement.
45. The Texas Disciplinary Rules have a rule specifically dealing with the safe keeping
of property when property or funds are in dispute. Rule 1.14(c) of the Texas Disciplinary Rules,
provides as follows:
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When in the course of representation a lawyer is in possession of funds or other
property in which both the lawyer and another person claim interests, the property
shall be kept separate by the lawyer until there is an accounting and severance of their
interest ... If a dispnte arises concerning their respective interests, the portion in dispute
shall be kept separate by the lawyer until the dispute is resolved, and the undisputed
portion shall be distributed appropriately. (emphasis added).
46. Here the entire $1.8 million, and more, is in dispute, and more than one party
"claims an interest" to these funds. In addition, any amounts that are going to Marshall Davis
Brown as a result of his conflict of interest, for simultaneously representing Darlina Barone, is also
disputed.
47. Therefore, it is mandatory that these monies be set aside.
FUNDS IN DISPUTE
48. There is an agreement (either entered into, or about to be entered into) by and
between Ronald J. Sommers, in his capacity as the Chapter 7 Trustee for the bankruptcy estate of
Michael Glyn Brown (the "Trustee"); Nathan Sommers Jacobs, P.C., Markowitz, Ringel, Trusty,
& Hartog, Gray Reed & McGraw, P .C., Carr, Riggs & Ingram, and The Claro Group (collectively,
the "Professionals"); and Rachel Brown, Marshall Davis Brown, Jr., Pavlas Brown, L.L.P., Robert
S. Hoffman, Law Offices of Robert S. Hoffman, P.L.L.C., Jedediah D. Moffett, Jedediah D.
Moffett, P.C., StewartMcLean Consultants, L.L.C., Darlina Barone, Joseph Indelicato, Jr., and
Claudia Canales (collectively, the "DSO Attorney Claimants"), with the understanding that there
will likely be sufficient funds in the bankruptcy estate of Michael Glyn Brown to pay the allowed
fees and expenses of the Professionals and the allowed DSO priority claims of the DSO Attorney
Claimants in full. This compromise would allow the bankruptcy Trustee to make payments to
Marshall Davis Brown, Jr., Pavlas Brown, L.L.P., Robert S. Hoffman, Law Offices of Robert S.
Hoffman, P.L.L.C., Jedediah D. Moffett, and Jedediah D. Moffett, P.C., in the amount of their
DSO "claim", which is approximately $1,834,000.00.
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49. Plaintiff specifically and respectfully requests that this Court preserve the status
quo by ordering that the $1,834,000.00 be placed in trust or deposited into the registry of the court,
pending resolution of this dispute over those very fees.
VII.
REQUEST FOR TEMPORARY INJUNCTION
50. To obtain a writ for temporary injunction, the applicant does not need to show that
it will win at trial4• Rather, it is merely required to plead and prove by competent evidence of two
elements: (1) a probable right on final trial to the relief he seeks, and (2) probable injury in the
interim. Sun Oil Co. v. Whitaker, 424 S.W.2d 216, 218 (Tex. 1968); Transport Co. of Texas v.
Robertson Transports, 216 S.W.2d 549, 552 (Tex. 1953). If the applicant pleads and proves a
"probable right of recovery" and "probable injury" in the interim, the court has broad discretion to
determine whether to issue the writ, and the trial court's order will be reversed only on a showing
of a clear abuse of discretion. Texas Foundries, Inc. v. Int 'l Moulders & Foundry Workers' Union,
248 S.W.2d 460, 462 (Tex. 1952). Both elements are present here.
51. Rachel is entitled to injunctive relief on statutory and equitable grounds. See TEX.
Bus. & COM. CODE§ 65.011(2) (statutory right to injunctive relief to preserve subject matter of the
suit); TEX. CIV. PRAC. & REM. CODE § 65.011(3) (statutory right to injunctive relief under the
principles of equity and the laws of Texas relating to injunctions); TEX. CIV. PRAC. & REM. CODE
§ 65.011(5) (statutory right to injunctive relief when irreparable injury to personal or real property
is threatened).
52. A temporary injunction order serves to preserve the status quo until the trial.
Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (the purpose of a temporary injunction is to
preserve the status quo pending a trial on the merits). Therefore, the question before the trial court
4 This case is presently set for trial in early 2015. Please see the Docket Control Order (DCO) attached hereto.
Page 17 of27
at the temporary injunction hearing is whether the applicant is entitled to an order to preserve the
status quo pending trial on the merits. Id.
53. Here, the status quo is that no party has possession of these monies. If such funds
are released by the bankruptcy court, then there are competing claims to such funds. Unilateral
disbursement and distribution would change the status quo. So, to preserve the status quo, such
monies should be held in escrow, or in the registry of the court, until proper ownership is
established by final judgment.
54. The probable right of recovery element encompasses the wrongful conduct. Inex.
Indus., Inc. v. A/par Res., Inc., 717 S.W.2d 685, 687-88 (Tex. App. - Amarillo 1986, no writ). The
wrongful conduct at issue in this application is clear. Instead, Defendants had negotiated for
themselves a position where they would be a priority creditor in the bankruptcy court, while the
Plaintiff was an unsecured creditor. Defendants never discussed this matter with Plaintiff, nor put
her on notice that their position would be enhanced in the event of bankruptcy. Rather, Defendants
continuously assured Plaintiff that bankruptcy was in her best interest, that a bankruptcy would be
beneficial to her, and that excellent results would occur from bankruptcy. Therefore, to the extent
that Defendants now seek recovery from the bankruptcy court, on their own and independent from
Plaintiff, any such claim should belong to Plaintiff. Defendants should not benefit from such
conduct.
55. In light of the foregoing, Rachel is substantially likely to prevail in preliminarily
and permanently enjoining MDB from accepting more monies in attorneys' fees from Rachel.
56. Rachel is not required to prove that there is no adequate remedy at law, because she
is statutorily entitled to injunctive relief according to the Texas Civil Practices and Remedies Code
§ 65.011(2). See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 210 (Tex. 2002).
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57. The balance of hardships strongly favors Rachel. Temporarily enjoining the
disbursement of funds would amount to a short delay. Since the effect of the injunctive relief
Rachel seeks will preserve all parties' rights until they are decided at trial, no party would be
damaged by such relief, and any bond requirement should be minimized.
58. It is the adequacy of the remedy, rather than the existence of a remedy, that
establishes the right to injunctive relief. In other words, the legal remedy must be as practical and
efficient to the ends of justice as the equitable remedy. Irving Bank & Trust Co. v. Second Land
Corp., 544 S.W.2d 684, 688 (Tex. Civ. App. - Dallas 1976, writ refd n.r.e.). For a legal remedy
to be adequate, it must therefore give the applicable complete, final, and equal relief. Miller v. K
& MP 'ship, 770 S.W.2d 84, 87 (Tex. App. - Houston [181 Dist.] 1989, no writ); Henderson v.
KRTS, Inc., 822 S.W.2d 769, 773 (Tex. App. - Houston [I st Dist.] 1992, no writ).
59. Allowing MDB to receive, distribute, deposit, spend or otherwise exercise
dominion and control over monies coming from the bankruptcy court, allegedly based on his
"right" to recover them from Rachel, would result in harm to Rachel. The case is not set for trial
until early 2015. Thus, absent relief from the Court, Rachel will be irreparably harmed.
60. Rachel requests that the Court dispense with issuance of a bond since the funds will
still be available in their entirety, or, alternatively, that the bond be minimal,, and that MDB and
his agents, employees, representatives, and others acting on his behalf, at his request, or under his
authority, or in concert with him, including without limitation employees ofMDB, be temporarily
restrained immediately, and, after notice and hearing, be enjoined, pending further order from this
Court, from accepting money from the Trustee under the compromise term sheet or otherwise.
Rachel also requests that Trustee be ordered to deposit any such monies into a mutually agreeable
escrow account, or, alternatively, into the registry of this Court or to the registry of the United
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States Bankruptcy Court for the Southern District of Texas, all monies to be paid to MDB until the
resolution of the State Court Action.
61. There is no demonstrable harm that would come from depositing the funds into the
registry of the court. Should Rachel not prevail in the State Court Action, then MDB will still
have the monies to do with as they see fit. On the other hand, the threat of harm is imminent in
that if the monies are disbursed, it will be lost forever.
62. Rachel asks the court to set Rachel's application for temporary injunction for a
hearing and, after the hearing, issue a temporary injunction against the MDB and his agents,
employees, representatives, and others acting on his behalf, at his request, or under his authority,
or in concert with him, including without limitation, all employees ofMDB.
63. Preliminary and permanent injunctive relief against MDB and his agents,
employees, representatives, and others acting on his behalf, at his request, or under his authority,
or in concert with him, including without limitation employees of MDB, to prevent the
disbursement of funds to Brown and, orders Brown to cooperate in ensuing that only funds
distributed from the bankruptcy be escrowed as outlined above. Rachel also requests the
immediate deposit of any funds due MDB from the bankruptcy estate into a mutually agreeable
escrow account, or, alternatively, into the registry of the court.
64. Further, to the extent that Defendants have any monies to which they are making a
claim, from the husband's bankruptcy case, such money should be placed in escrow, and the
·
ownership of such monies is contested. In particular, Plaintiff would show that Defendants, by
their conduct, have placed Plaintiff in a position of being an unsecured creditor in the bankruptcy
matter. Even after the bankruptcy matter was filed, Defendants did nothing to take Plaintiffs case
to mediation, or to otherwise pursue settlement opportunities. This is in spite of the fact that the
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bankruptcy estate, and the actions of the bankruptcy court, was decimating the value of the
community estate rapidly.
65. Instead, Defendants had negotiated for themselves a position where they would be
a priority creditor in the bankruptcy court, while the Plaintiff was an unsecured creditor.
Defendants never discussed this matter with Plaintiff, nor put her on notice that their position
would be enhanced in the event of bankruptcy. Rather, Defendants continuously assured Plaintiff
that bankruptcy was in her best interest, that a bankruptcy would be beneficial to her, and that
excellence results would occur from bankruptcy. Therefore, to the extent that Defendants now
seek recovery from the bankruptcy court, on their own and independent from Plaintiff, any such
claim should belong to Plaintiff.
66. Plaintiff, therefore, asks that any such monies be subject to garnishment, attachment
or sequestration. In addition, an injunction should be issued to prohibit Defendants from accessing
any such monies. To the extent that any such monies are approved and/or paid, such monies should
be paid directly to Plaintiff. Alternatively, such monies should be placed in escrow. Clearly, under
the Texas Rules of Disciplinary Procedure, the ownership of such monies belongs to Plaintiff, or,
alternatively, at a minimum, the ownership of such monies is contested and therefore disbursement
cannot occur.
67. Under all of the above scenarios, disbursement of such monies cannot be to
Defendants. Plaintiff would request any such monies be awarded to her directly or barring that,
any such monies be held in escrow by a neutral third party, or appropriate entity as designated by
the court, until the trial of this case, or ownership of such monies can be established.
68. To the extent that this petition therefore is construed to be a request for a temporary
injunction preventing Defendants from receiving such money, and prohibiting Defendants from
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disbursing any such monies, or distributing such monies, or claiming ownership to such monies,
then this petition is an application for a temporary injunction and an application for a permanent
injunction with respect to such matters.
A. Temporary Injunction
69. Plaintiff is entitled to injunctive relief on statutory and equitable grounds. See Tex.
Civ. Prac. & Rem. Code § 65.011(3) (statutory right to injunctive relief under the principles of
equity and the laws of Texas relating to injunctions); Tex. Civ. Prac. & Rem. Code§ 65.011(5)
(statutory right to injunctive relief when irreparable injury to personal or real property is
threatened). A temporary restraining order serves to provide emergency relief and to preserve the
status quo until a hearing may be had on a temporary injunction. Walling v. Metcalfe, 863 S.W.2d
56, 58 (Tex. 1993) (the purpose of a temporary injunction is to preserve the status quo pending a
trial on the merits). Therefore, the only question before the trial court at the temporary injunction
hearing is whether the applicant is entitled to an order to preserve the status quo pending trial on
the merits. Id.
70. Plaintiff is not required to prove that there is no adequate remedy at law, because
she is statutorily entitled to injunctive relief according to the Texas Civil Practices and Remedies
Code§ 65.011. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 210 (Tex. 2002). The balance of
hardships strongly favors Plaintiff. Since the effect of the injunctive relief Plaintiff seeks will
preserve all parties' rights until they are decided at trial, no party would be damaged by such relief,
and only bond requirement should be minimized.
71. Plaintiff will alert Defendants as to her plan to seek the requested temporary
restraining order, and will endeavor to give adequate notice to each so that they can appear in
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Court. Plaintiff requests, however, that ifDefendants are unable to attend the hearing on Plaintiffs
request for a temporary restraining order that the Court proceed as if this were an ex parte request.
72. Plaintiff asks the court to set Plaintiffs application for temporary injunction for a
hearing and, after the hearing, issue a temporary injunction against Defendants.
B. Request for Permanent Injunction
73. Plaintiff asks the court to set her application for permanent injunction for a full trial
on the merits and, after the trial, issue a permanent injunction against Defendants.
VIII.
STATUTE OF LIMITATIONS
74. Plaintiff would show and incorporate all of the facts that are discussed and set forth
herein.
75. Plaintiff would show that there are no applicable bars to her case based upon any
statute of limitations. First, Plaintiff would show that the statute of limitations has not run on any
causes of action asserted herein. Plaintiff also hereby pleads the Discovery Rule and/or the
Fraudulent Concealment Rule. Plaintiff has two (2) years from the period of time that she
discovered the Defendants negligent acts to bring suit and this suit is timely. Plaintiff would also
plead the benefit of any tolling statute of limitations, including any tolling of statute of limitations
regarding the time period during which any Defendants were out of the State of Texas.
76. In addition, Plaintiff would show that any statute of limitations would be tolled
and/or would not run during the period of time that Defendants had an attorney/client relationship
that was ongoing with Plaintiff, and/or during the time that the transaction/lawsuit was pending,
which was at least December 2013. Furthermore, such attorney/client relationship was in
connection with their representation of the Plaintiff in the underlying divorce and bankruptcy
matters.
Page 23 of27
77. Furthermore, Plaintiff would show that many of the allegations referred to herein
as acts of malpractice on the part of the Defendants, occurred within two (2) years of the date of
filing of the lawsuit and, therefore, are not barred by the statute of limitations. Further, Plaintiff
would also plead the effect of any tolling statute regarding amended or supplemental pleadings
arising out of the transaction or occurrence as relating back to the date of the original filing.
Plaintiff would ask the Court to take judicial notice of the date the original filing in this case took
place and also judicial notice of the date that any amendments to the petition are filed.
78. Additionally, Plaintiff hereby pleads the Hughes rule, as cited by the Texas
Supreme Court in Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991). Under the Hughes
doctrine, the statute of limitations is tolled until Plaintiff has exhausted all appeals in the underlying
matter. Until then, the cause of action does not accrue. Plaintiff therefore hereby asserts each of
these rules and exceptions to the tolling of the statute of limitations to support her timely filing of
the Plaintiffs Original Petition in this matter.
IX.
DAMAGES
79. Plaintiff, R. Brown, is entitled to damages which include the following:
A. Forfeiture of all attorneys' fees in Cause No. 2011-01272 in the 246'h Judicial
District Court of Harris County, Texas for breach of fiduciary duty;
B. Damages for loss of value in the community estates of Plaintiff as a result of
the actions of the Defendants; and
C. Attorney's fees incurred in prosecuting the underlying matters, the bankruptcy
matter, and this suit;
D. Punitive damages for gross negligence and breach of fiduciary duty;
Page 24 of27
E. All other relief, whether general or special, whether in law or in equity, to which
Plaintiff is justly entitled.
80. Further, Plaintiff asks a Jury to award money damages in this case in an amount
that is commensurate with her fair and just damages. Plaintiff believes those damages to be in
excess of the minimal jurisdictional limits of this court.
x.
PREJUDGMENT AND POST-JUDGMENT INTEREST
81. Plaintiff further pleads for prejudgment and post-judgment interest.
XI.
JURY DEMAND
82. Plaintiff demands a trial by jury.
XII.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays:
(I) That Defendants be cited to appear and answer herein;
(2) That a temporary and permanent injunction be entered and all
money placed in the registry of the court or into a designated trust account pending
the outcome of this matter;
(3) That upon a trial of the merits of this cause, that Plaintiff have and
recover a judgment against these Defendants, jointly and/or severally, awarding all
damages, general and special, requested and prayed for herein;
(4) Forfeiture of all attorney's fees in all underlying matters, including
Cause No. 2011-01272 in the 246'h Judicial District Court of Harris County, Texas;
(5) All damages and loss of value in the Community Estate as a result
of the actions of the Defendants;
Page 25 of27
(6) Attorney's fees incurred in the prosecution of this suit;
(7) That the judgment bear interest as allowed by law for prejudgment
and post-judgment interest;
(8) That all costs of Court be taxed against the Defendants; and
(9) For such other and further relief, both at law and in equity, to which
the Plaintiff is entitled.
Respectfully submitted,
WILLIAMSON & RUSNAK
IS/ Jimmy Williamson
TIMMY WILLIAMSON
jimmy@iimmywilliamson.com
State Bar No. 21624100
CYNDI M. RUSNAK
cyndi@jimmywilliamson.com
State Bar No. 24007964
4310 Yoakum Boulevard
Houston, Texas 77006
Telephone: (713) 223-3330
Facsimile: (713) 223-0001
ROSS A. SEARS, II, P.C.
By: Isl Ross A. Sears. II
Ross A. Sears, II
State Bar No. 17960011
4310 Yoakum Blvd.
Houston, Texas 77006
Telephone (713) 223-3333
Facsimile (713) 223-3331
ATTORNEYS FOR PLAINTIFF
Page 26 of27
CERTIFICATE OF SERVICE
I hereby certify that on September 16, 2014, I forwarded a copy of this instrument to all
counsel of record by either email, facsimile, certified mail, return receipt requested and/or hand
delivery to:
Defendant, M.D. Brown, Jr., Individually Defendant, Pavlas & Brown, L.L.P.
by and through his attorney of record, by and through its attorney of record,
Jedediah D. Moffett Jedediah D. Moffett
Jedediah D. Moffett, P.C. Jedediah D. Moffett, P.C.
801 Congress, Suite 400 801 Congress, Suite 400
Houston, Texas 77002 Houston, Texas 77002
Defendant, Pavlas, Brown & York, L.L.P Defendant, Jedediah D. Moffett, P.C.
by and through its attorney of record, by and through its attorney of record,
Jedediah D. Moffett Marshall Davis Brown, Jr.
Jedediah D. Moffett, P.C. Pavlas & Brown, L.L.P.
801 Congress, Suite 400 3040 Post Oak Boulevard, Suite 120
Houston, Texas 77002 Houston, Texas 77056
Defendant, Jedediah D. Moffett Defendants, Robert S. Hoffman,
by and through his attorney of record, Individually
Marshall Davis Brown, Jr. and Law Office of Robert S. Hoffman, P.
Pavlas & Brown, L.L.P. L.L.C.
3040 Post Oak Boulevard, Suite 120 by and through their attorney of record,
Houston, Texas 77056 Tom Alan Cunningham
Debbie C. Darlow
919 Milam, Suite 575
Houston, Texas 77002
Isl Ross A. Sears. II
Ross A. Sears, II
Page 27 of27
Tab 2
Hoffman’s disclosures (insurance policy omitted)
NO. 2014-17523
R. BROWN, § IN THE DISTRICT COURT OF
§
Plaintiff §
§
V. § HARRIS COUNTY, TEXAS
§
M. D. BROWN, JR., ET AL. §
§
Defendants. § 270th JUDICIAL DISTRICT
HOFFMAN’S RESPONSE TO PLAINTIFF’S
REQUEST FOR DISCLOSURES
TO: Plaintiff and her attorney, Jimmy Williamson, Williamson & Rusnak, 4310 Yoakum
Boulevard, Houston, Texas 77006
Pursuant to TRCP Rules 194.2 and 194.3, Robert S. Hoffman and the Law Office of
Robert S. Hoffman, P.L.L.C. (Hoffman), respond to Plaintiff’s Request for Disclosures.
Respectfully submitted,
CUNNINGHAM DARLOW LLP
By:______________________________________
Tom Alan Cunningham
tcunningham@cunninghamdarlow.com
State Bar No. 05244700
Debbie C. Darlow
ddarlow@cunninghamdarlow.com
State Bar No. 05186900
919 Milam Street, Suite 575
Houston, Texas 77002
Telephone: (713) 255-5500
Telecopier: (713) 255-5555
ATTORNEYS FOR DEFENDANTS,
ROBERT S. HOFFMAN and
THE LAW OFFICE OF ROBERT S. HOFFMAN,
P.L.L.C.
CERTIFICATE OF SERVICE
Pursuant to Rule 21a(a)(2) of the Texas Rules of Civil Procedure, a true and correct copy
of the foregoing has been served upon the parties and counsel listed below by email, on this 16th
day of June, 2014.
Jimmy Williamson
jimmy@jimmywilliamson.com
Williamson & Rusnak
4310 Yoakum Boulevard
Houston, Texas 77006
Marshall Davis Brown, Jr.
mdbrown@pavlasbrown.com
Pavlas & Brown, L.L.P.
3040 Post Oak Boulevard, Suite 1020
Houston, Texas 77056
Jedediah D. Moffett
jdm@moffettpc.com
Jedediah D. Moffett, P.C.
801 Congress, Suite 400
Houston, Texas 77002
_______________________________
Tom Alan Cunningham
2
RESPONSES TO DISCLOSURES
(a) the correct names of the parties to the lawsuit;
Plaintiff:
Rachel Brown
Defendants:
Marshall Davis Brown, Jr.
Pavlas & Brown, L.L.P.
Pavlas, Brown & York, L.L.P.
Jedediah D. Moffett
Jedediah D. Moffett, P.C.
Robert S. Hoffman
The Law Office of Robert S. Hoffman, P.L.L.C.
(b) the name, address, and telephone number of any potential party;
David L. Grange
President and CEO
Osprey Global Solutions, L.L.C.
8209-A Market Street, No. 294
Wilmington, North Carolina 28411
(855) 741-5168
Connection: (1) Chief Restructuring Officer for all business entities owned and/or
controlled by Michael Glyn Brown; appointed on March 14, 2013 by Judge Robert A.
Mark, Southern District of Florida (Miami), Bankruptcy Case 13-11484-RAM; (2)
Defendant in Case No. 13-23170-CIV, Michael Glyn Brown v. David L. Grange, in the
Southern District of Florida (federal).
(c) the legal theories and, in general, the factual bases of the responding party’s claims
or defenses (the responding party need not marshal all evidence that may be offered
at trial);
Hoffman refers to and incorporates its pleadings as part of this disclosure.
The Plaintiff’s claims are meritless. Hoffman has not breached any legal duties owed to
the Plaintiff. At all relevant times, Hoffman’s professional services were performed
according to the applicable standard of care. The Plaintiff’s claims regarding attorney’s
fees and expenses, among others, have already been considered, adjudicated, and
disposed of by court order and may not be raised again in this case. Plaintiff has suffered
no damages. Alternatively, to the extent Plaintiff has suffered any damage in connection
with her divorce, such damage was caused by third persons over whom Hoffman has had
no control, including but not limited to Michael Glyn Brown and David L. Grange.
3
(d) the amount and any method of calculating economic damages;
Plaintiff has suffered no damages.
(e) the name, address, and telephone number of persons having knowledge of relevant
facts, and a brief statement of each identified person’s connection with the case;
Rachel Brown
c/o Jimmy Williamson
Williamson & Rusnak
4310 Yoakum Boulevard
Houston, Texas 77006
713-223-3330
Connection: Plaintiff.
Marshall Davis Brown, Jr.
Pavlas & Brown, LLP
3040 Post Oak Blvd., Suite 1020
Houston, Texas 77056
(713) 222-2500
Connection: Defendant.
Robert S. Hoffman
Law Office of Robert S. Hoffman, P.L.L.C.
6575 West Loop South, Suite 496
Bellaire, Texas 77401
(713) 333-8353
Connection: Defendant.
Jedediah D. Moffett
Law Office of Jedediah D. Moffett, P.C.
801 Congress, Suite 400
Houston, Texas 77002
(713) 333-5800
Connection: Defendant.
William B. Stewart, Jr., CPA/ABV/CFF, CFE, CVA
Stewart McClean Consultants LLC
7887 San Felipe Street, Suite 122
Houston, Texas 77063
(713) 974-2928
Connection: Financial, business valuation, accounting, tracing, and tax expert for Rachel
Brown in Brown divorce suit No. 2011-01272 in 309th Judicial District Court, Harris
County, Texas.
4
Elizabeth H. Hurst, MBA, ASA
Stewart McClean Consultants LLC
7887 San Felipe Street, Suite 122
Houston, Texas 77063
(713) 974-2928
Connection: Business valuation, financial and accounting expert for Rachel Brown in
Brown divorce suit No. 2011-01272 in 309th Judicial District Court, Harris County, Texas
Joseph Indelicato, Jr.
Joseph Indelicato, Jr., P.C.
3355 W. Alabama, Suite 950
Houston, Texas 77098
(713) 952-2949
Connection: Master In Chancery in Brown divorce suit No. 2011-01272 in 309th Judicial
District Court, Harris County, Texas.
Claudia Canales
Law Office of Claudia Canales P.C.
2112 Grand Blvd.
Pearland, Texas 77581
(281) 412-7722
Connection: Amicus Attorney in Brown divorce suit No. 2011-01272 in 309th Judicial
District Court, Harris County, Texas.
John F. Nichols, Sr.
Nichols Law, P.L.L.C.
5020 Montrose Blvd., Suite 400
Houston, Texas 77006
(713) 654-0708
Connection: Most recent former lead attorney for Michael Glyn Brown in (1) Brown
divorce suit No. 2011-01272 in 309th Judicial District Court, Harris County, Texas; (2)
Barone modification suit No. 2006-25428 in 247th Judicial District Court of Harris
County, Texas; and (3) Barrett Litigation No. 2012-07519 in 333rd Judicial District Court
of Harris County, Texas.
Sandy S. Mercer
Mercer Law
3319 Marian Lane
Rosenberg, Texas 77471
(713) 866-4804
Connection: Formerly with Nichols Law, P.L.L.C. Former co-counsel for Michael Glyn
Brown in (1) Brown divorce suit No. 2011-01272 in 309th Judicial District Court, Harris
County, Texas; and (2) Barone modification suit No. 2006-25428 in 247th Judicial
District Court of Harris County, Texas.
5
Darryl W. Malone
5020 Montrose Blvd., Suite 400
Houston, Texas 77006
(713) 224-6500
Connection: (1) Most recent former lead attorney for all Third Party Respondent
business entities (Superior Vehicle Leasing Co., Inc.; Brown Medical Center, Inc. d/b/a
Surgeons Management, Inc.; Texas Hand Therapy Center, Inc. d/b/a The Hand Center;
Castlemane, Inc.; Lionheart Company, Inc.; MG Brown International, LLC; MG Brown
Investment Group, LLC; Prorentals, Inc.; BHCF, LLC) in Brown divorce suit No. 2011-
01272 in 309th Judicial District Court, Harris County, Texas; and (2) most recent former
lead counsel for Brown Medical Center, Inc. and BHCF in Barret litigation, No. 2012-
07519 in 333rd Judicial District Court, Harris County, Texas; and (3) most recent former
lead counsel for Derivative Third Party Defendants (ASC) in Barret litigation, No. 2012-
07519 in 333rd Judicial District Court, Harris County, Texas.
David L. Grange
President and CEO
Osprey Global Solutions, L.L.C.
8209-A Market Street, No. 294
Wilmington, North Carolina 28411
(855) 741-5168
Connection: (1) Chief Restructuring Officer for all business entities owned and/or
controlled by Michael Glyn Brown; appointed on March 14, 2013 by Judge Robert A.
Mark, Southern District of Florida (Miami), Bankruptcy Case 13-11484-RAM; (2)
Defendant in Case No. 13-23170-CIV, Michael Glyn Brown v. David L. Grange, in the
Southern District of Florida (federal).
Mary-Olga Lovett
GreenbergTraurig, L.L.P.
1000 Louisiana, Suite 1700
Houston, Texas 77002
(713) 374-3500
Connection: Variously, former lead attorney for (1) Michael Glyn Brown in Brown
divorce suit No. 2011-01272 in 309th Judicial District Court, Harris County, Texas; (2)
for BHCF in 309th Judicial District Court, Harris County, Texas; (3) for Michael Glyn
Brown in Barone modification suit No. 2006-25428 in 247th Judicial District Court of
Harris County, Texas; (4) for MGB’s petition for mandamus in No. 14-12-00641-CV,
14th Court of Appeals, Houston, Tex.; (5) for MGB’s Pet Mandamus in No. 12-0670,
Supreme Court, Tx.; and for (6) Brown Medical Center, Inc. and BHCF in Barret
litigation, No. 2012-07519 in 333rd Judicial District Court, Harris County, Texas.
Robert C. Kuehm
Robert C. Kuehm PC
8441 Gulf Freeway, Suite 600
Houston, Texas 77017
(713) 861-6166
6
Connection: (1) Former lead attorney, and subsequently co-counsel, for Michael Glyn
Brown in Brown divorce suit No. 2011-01272 in 309th Judicial District Court, Harris
County, Texas; and (2) former lead attorney, and subsequently co-counsel, for Michael
Glyn Brown in Barone modification suit No. 2006-25428 in 247th Judicial District Court
of Harris County, Texas.
Jeanne C. McDowell
603 Avondale St.
Houston, Texas 77006
(713) 655-9595
Connection: Former Co-counsel for (1) Michael Glyn Brown in Brown divorce suit No.
2011-01272 in 309th Judicial District Court, Harris County, Texas; (2) for Michael Glyn
Brown in Barone modification suit No. 2006-25428 in 247th Judicial District Court of
Harris County, Texas; and (3) for MGB’s petition for mandamus in No. 14-12-00641-
CV, 14th Court of Appeals, Houston, Texas.
Philip H. Hilder
Hilder & Associates, P.C.
819 Lovett Blvd.
Houston, Texas 77006
(713) 655-0111
Connection: (1) Former lead attorney, and subsequently, co-counsel, for all Third Party
Respondent business entities (Superior Vehicle Leasing Co., Inc.; Brown Medical Center,
Inc. d/b/a Surgeons Management, Inc.; Texas Hand Therapy Center, Inc. d/b/a The Hand
Center; Castlemane, Inc.; Lionheart Company, Inc.; MG Brown International, LLC; MG
Brown Investment Group, LLC; Prorentals, Inc.; BHCF, LLC) in Brown divorce suit No.
2011-01272 in 309th Judicial District Court, Harris County, Texas; and (2) former co-
counsel for Brown Medical Center, Inc. and BHCF in Barret litigation, No. 2012-07519
in 333rd Judicial District Court, Harris County, Texas
Michael R. DeBruin
Ike Vanden Eykel
KoonsFuller, P.C.
1717 McKinney Ave., Suite 1500
Dallas, Texas 75202
(214) 871-2727
Connection: Former lead counsel for (1) Michael Glyn Brown in Brown divorce suit
No. 2011-01272 in 309th Judicial District Court, Harris County, Texas; and (2) for
Michael Glyn Brown in Barone modification suit No. 2006-25428 in 247th Judicial
District Court of Harris County, Texas.
Katherine Scardino
3730 Kirby Drive, Suite 1120
Houston, Texas 77098
(713) 520-5223
7
Connection: (1) Former lead counsel for Michael Glyn Brown in Brown divorce suit
No. 2011-01272 in 309th Judicial District Court, Harris County, Texas; (2) former lead
counsel for Michael Glyn Brown in Barone modification suit No. 2006-25428 in 247th
Judicial District Court of Harris County, Texas; and (3) co-counsel in State v. Michael G.
Brown, No. 1275269, in the 263rd Judicial District Court of Harris County, Texas.
Dick DeGuerin
DeGuerin & Dickson
1018 Preston Ave., 7th Floor
Houston, Texas 77002
(713) 223-5959
Connection: (1) Former co-counsel for Michael Glyn Brown in Brown divorce suit No.
2011-01272 in 309th Judicial District Court, Harris County, Texas; (2) former co-counsel
for Michael Glyn Brown in Barone modification suit No. 2006-25428 in 247th Judicial
District Court of Harris County, Texas; and (3) lead counsel in State v. Michael G.
Brown, No. 1275269, in the 263rd Judicial District Court of Harris County, Texas.
Mark Tate
Tate Law Group
2 East Bryan Street, Suite 600
Savannah, Georgia 31401
(912) 234-3030
Connection: (1) Lead attorney for Defendant, Michael G. Brown, in Chris Stevens v.
Michael Glyn Brown, No. 100255/12, Supreme Court of NY, County of N.Y. (tort suit);
(2) lead attorney for ProMed, LLC/M.G.B v. Pavlas Brown, Rachel Brown et al, in Case
No. 6:12-CV-00089-MSH, U.S. District Court, Eastern Dist. Texas (Tyler); and (3)
MGB’s attorney to handle various personal and corporate matters.
Robert J. Hantman
Hantman & Associates
1515 Broadway, 11th Floor
New York, New York 10036
(212) 684-3033; (917) 693-7444
407 Lincoln Road, PH SE
Miami Beach, Florida 33139
(305) 534-4757
Connection: Personal attorney for Michael Glyn Brown on various litigation and
personal matters: (1) Chris Stevens v. Michael Glyn Brown, No. 100255/12, Supreme
Court of NY, County of N.Y. (tort suit); (2) Brown divorce suit No. 2011-01272 in 309th
Judicial District Court, Harris County, Texas; (3) Brown Bankruptcy No. 13-11484-
RAM, Southern District of Florida (Miami); (4) Criminal case No. 13-mj-2009-WCT,
USA v. Michael G. Brown, U.S. District Ct. Southern District of Florida (Miami);
various personal matters.
Steve Chance, Attorney
Steve Chance Attorney at Law, PC
8
119 N. Commercial St., Suite 275
Bellingham, Washington 98225
(360) 676-9700
Connection: Attorney for M. G. Brown personal and business matters, including Florida
matters (Promed and MGBrownCo).
Geoffrey S. Aaronson
Aaronson Schantz, P.A.
Miami Tower, 27th Floor
100 S.E. 2nd Street
Miami, Florida 33131
(786) 594-3000
Connection: Lead attorney for Michael Glyn Brown for bankruptcy cases.
Michael Sims
Overwatch Security Group
12818 Highway 105 West, Suite 2-G
Conroe, Texas 77304
(281) 797-5373
Connection: Security services for Rachel Brown and children.
Ray von Proctor
1502 Barraud Court
Katy, Texas 77449
c/o Ellen Sprovach
Rosenberg & Sprovach
3518 Travis, Suite 200
Houston, Texas 77002
(713) 960-8300
Connection: Former Chief of Staff to Michael G. Brown for all Brown owned and/or
controlled business entities; also handled M. G. Brown personal matters.
Charles “Chuck” Cave
1314 St. Andrew Road
Kingwood, Texas 77339
c/o Joseph M. Grant
The Grant Law Firm
94 A Drew Street
Houston, Texas 77006
(713) 880-3331
Connection: Former Chief Financial Officer for Brown Medical Center, Inc. and other
Brown owned and/or controlled business entities; also handled MG Brown personal
financial transactions and sources of funds.
Manny Guyot
c/o Paul Simon
9
Simon Herbert McClelland & Stiles, LLP
3411 Richmond Ave., Suite 400
Houston, Texas 77046
(713) 987-7100
Connection: Former CEO of Instratek and Brown Medical Center, Inc.; business
models, bank accounts, expenditures.
Patrick M. Levantino
Levantino & Company
2201 West Davis
Conroe, Texas 77304
(936) 441-6212
Connection: CPA for MGB personally and for business entities; arranger of funds and
loans for MGB; personal intermediary for MGB in divorce case regarding settlement
offer; personal friend of MGB.
Steven Levy
Levantino & Company
2201 West Davis
Conroe, Texas 77304
(936) 441-6212
Connection: Prepared all tax returns for MGB personally and for all Brown owned
and/or controlled business entities.
Mynde Eisen
Law Office of Mynde Eisen, P.C.
9800 Pagewood, Suite 3202
P. O. Box 630749
Houston, Texas 77263
(713) 266-2955
Connection: Bankruptcy counsel to Rachel Brown.
Miryam Mitchell.
Law Office of Robert S. Hoffman, P.L.L.C.
6575 West Loop South, Suite 496
Bellaire, Texas 77401
(713) 333-8353
Connection: Associate in Mr. Hoffman’s law office.
Johnie Paterson
Walker & Patterson, P.C.
4815 Dacoma Street
Houston, Texas 77092
(713) 956-5577
Connection: Counsel for Rachel Brown.
10
Preston T. Towber
Towber Law Firm PLLC
6750 West Loop South, Suite 920
Bellaire, Texas 77401
(832) 485-3555
Connection: Counsel for Defendants in bankruptcy proceedings.
In addition to the foregoing, Hoffman adopts and incorporates the persons designated as
witnesses or persons with knowledge of relevant facts by any other party.
(f) for any testifying expert:
(1) the expert’s name, address, and telephone number;
(2) the subject matter on which the expert will testify;
(3) the general substance of the expert’s mental impressions and opinions and a
brief summary of the basis for them, or if the expert is not retained by,
employed by, or otherwise subject to the control of the responding party,
documents reflecting such information;
(4) if the expert is retained by, employed by, or otherwise subject to the control
of the responding party:
(A) all documents, tangible things, reports, models, or data
compilations that have been provided to, reviewed by, or prepared
by or for the expert in anticipation of the expert’s testimony; and
(B) the expert’s current resume and bibliography;
Hoffman has not designated its experts at this time. Designation of testifying experts will
take place according to the Docket Control Order.
(g) any indemnity and insuring agreements described in Rule 192.3(f);
Attached.
(h) any settlement agreements described in Rule 192.3(g);
None.
(i) any witness statements described in Rule 192.3(h);
None.
(j) in a suit alleging physical or mental injury and damages from the occurrence that is
the subject of the case, all medical records and bills that are reasonably related to
the injuries or damages asserted or, in lieu thereof, an authorization permitting the
disclosure of such medical records and bills;
11
Not applicable to Hoffman.
(k) in a suit alleging physical or mental injury and damages from the occurrence that is
the subject of the case, all medical records and bills obtained by responding party
by virtue of an authorization furnished by the requesting party;
Not applicable to Hoffman.
(l) the name, address, and telephone number of any person who may be designated as a
responsible third party.
None known at this time.
Hoffman reserves the right to supplement, alter, change and/or amend each of the
foregoing disclosure responses as the case progresses.
12
Tab 3
Brown’s disclosures
CAUSE NO. 2014-17523
R.BROWN § IN THE DISTRICT COURT OF
§
vs. § HARRIS COUNTY, T EXA S
§
M. D.BROWN, JR., §
INDIVIDUALLY, ET AL § 61 st JUDICIAL DISTRICT
PLAINTIFF'S SECOND AMENDED RESPONSE TO REQUESTS
FOR DISCLOSURE PURSUANT TO RULE 194.2
TO: Defendants, Robert S. Hoffman and the Law Office of Robert S. Hoffman, P.L.L.C., by
and through their attorney of record, Tom Cunningham, 919 Milam, Suite 575, Houston,
Texas, 77002.
Defendants, Jedediah D. Moffett, prose, and Jedediah D. Moffett, P.C. 801 Congress, Suite
400, Houston, Texas, 77002.
Defendants, M.D. Brown, Jr., prose, Pavlas & Brown L.L.P., and Pavlas, Brown & York,
L.L.P., 3040 Post Oak Blvd, Suite 1020, Houston, Texas, 77056.
COMES NOW R. Brown, Plaintiff, in the above entitled and numbered cause and files the
attached Second Amended Responses to Defendants' ,Request for Disclosures.
& RUSNAK
um Boulevard
Houston, Texas 77006
713/223-3330
713/223-0001 Facsimile
1
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was forwarded,
pursuant to Rule 21 and 21(a) of the Tex. R. Civ. P. on the 3rd day of July, 2014, to the following:
Marshall Davis Brown, Jr. mdbrown@pavlasbrown.com
3040 Post Oak Blvd, Ste. 1020
Houston, Texas 77056
Tom Cunningham tcunningham@cunninghamdarlow.com
919 Milam, Suite 575
Houston, Texas 77002
I
Jedediah D. Moffett jdm@moffettpc.com
801 Congress, Ste. 400
Houston, Texas 77002
JI
2
PLAINTIFF'S SECOND AMENDED RESPONSE TO REQUESTS
FOR DISCLOSURE PURSUANT TO RULE 194.2
1. The correct names of the parties to this lawsuit.
RESPONSE:
Plaintiff - R. Brown
Defendant - Robert S. Hoffman
Defendant - The Law Office of Robert S. Hoffman
Defendant - M.D. Brown, Jr.
Defendant - Pavlas Brown & York, L.L.P.
Defendant - Pavlas & Brown, L.L.P.
Defendant­ Jedediah D. Moffett
Defendant - Jedediah D. Moffett, P.C.
2. The name, address, and telephone number of any potential parties.
RESPONSE:
Plaintiff is not aware of any other potential parties at the present time, other than lawyers
and experts retained and/or employed by the Defendants.
3. The legal theories and, in general, the factual basis of your claims.
RESPONSE:
1. While in the course and scope of providing legal services, the Lawyer Defendants' actions,
errors and omissions, as set forth herein, indicate multiple examples of negligent conduct as well
as breaches of fiduciary duties to Plaintiff. The items listed below are a non-exhaustive itemization
of multiple acts of negligence and breach of fiduciary duty. Defendants, in addition to the multiple
acts of negligence also clearly placed their own interests ahead of the Client, ran up excessive and
unnecessary legal fees that were unconscionable and as such should be reduced or forfeited
pursuant to the applicable law. Defendants owed a duty of loyalty and utmost good faith to
Plaintiff. Plaintiff was injured by Defendants' breach and Defendants' benefited from their breach
of duty. Defendants' breach was done with the requisite state of mind for which an imposition of
exemplary damages is authorized. These failures will be addressed in the following categories:
a. General;
b. Failure to Pursue Settlement Opportunities;
c. Lack of Proper Disclosures to Client;
d. Unauthorized Disclosures to Third Parties;
3
e. Bankruptcy Proceedings;
f. The Appointment of Mr. Grange in the Bankruptcy Proceedings;
g. DSO Funds & the Bankruptcy Proceedings;
h. Billing by Third Parties & Overburdening the Community Estate;
1. Expert Witnesses;
J. Unnecessary Security Costs;
k. IRS Issues;
l. External Litigation;
m. Conflict of Interest with Darlina Barone;
n. Examples of Placing the Lawyer Defendants' Interest Before their Client's Interest;
o. Unnecessary Billing, Overbilling, Incorrect Billing, and Disgorgement;
p. Breach of Contract; and
q. Joint Action
General
2. Defendants, as Plaintiff, Rachel Brown's ("Rachel") attorneys, owed Rachel a legal duty.
This duty was established by the attorney-client contract with Rachel. Defendants' breached that
duty. Defendants' breach proximately caused Plaintiffs actual damages. The Defendants' acts
constituted a departure from that which an attorney of ordinary prudence would do under the same
or similar circumstances. As such, the Defendants are liable for negligence. The items listed
below are a non-exhaustive itemization of multiple acts of negligence;
3. Attorneys' fees paid to Defendants exceeded reasonable and customary fees. Defendants'
interest was to make money for themselves, and they placed their interests ahead of Rachel's. All
fees should be disgorged;
4. While in the course and scope of providing legal services, the Lawyer Defendants, did not
deny that they had a fiduciary duty to Plaintiff. At no time during this time period did Defendants
take the position that they did not have an attorney/client relationship with Plaintiff. At no time
did Defendants take the position that they were not assisting or were unable to assist on any of the
litigation matters or render advice regarding the underlying divorce on behalf of Plaintiff. To the
contrary, during this period of time, Defendants represented to Plaintiff that they were qualified,
that they had an attorney/client relationship with Plaintiff, that they were content and happy to
work upon Plaintiffs legal matters, that they were able to do so, and that they had an ongoing
attorney/client relationship with Plaintiff in the underlying divorce. As such, Defendants had an
ongoing duty as attorneys to Plaintiff and also had an ongoing duty as a fiduciary to Plaintiff.
Defendants failed to act in the best interests of Plaintiff. As a result of Defendants' actions,
Plaintiff incurred damages, including unnecessary legal fees and a gross diminishing of the
community estate;
5. While in the course and scope of providing legal services, the Lawyer Defendants at all
times related to the instant lawsuit, were in the course and scope of their employment and/or
agency to their respective law firms. Accordingly, Rachel has sued the Law Firm Defendants for
4
all damages caused by the negligence, errors and omissions of the Lawyer Defendants, under the
doctrine of respondeat superior. Additionally, the Law Firm Defendants, are liable for the
damages caused by the negligence of the individual Lawyer Defendants under the agency doctrines
of apparent authority, ostensible agency, and agency by estoppel. Alternatively, Law Firm
Defendants are liable for the damages caused by the negligence of the Lawyer Defendants under
Section 429 of the Restatement (Second) of Torts;
6. While in the course and scope of providing legal services, the Lawyer Defendants were
attorneys practicing law within the State of Texas at all relevant times herein.
7. The Lawyer Defendants, each individually, on behalf of themselves and their respective
law firms, executed contracts of employment with Rachel. From approximately August 2010 to
present, Defendants had an attorney/client relationship with Plaintiff. Defendants had an
attorney/client relationship with Plaintiff that dealt with, among other things, handling her divorce
(her husband is now deceased), and all matters concerning her rights and interests, and subsequent
and concurrent litigation. Such divorce was filed on or around January 7, 2011, as Cause No.
2011-01272 in the 2461 h Judicial District Court of Harris County, Texas (hereinafter sometimes
referred to as the "Divorce"). During the time Defendants represented Plaintiff in the divorce,
Defendants were Plaintiff's attorneys and counselors in a multitude of other matters.
8. During the time complained of, Defendants were practicing law within the State of Texas
and were held to the duty of any reasonable practitioner of law within the State of Texas. Namely,
during this period of time, Defendants had an attorney/client Relationship with Rachel and owed
her a fiduciary duty at all times during this point in time. In connection with that, Defendants
owed Rachel a duty of candor, loyalty, trust, fidelity and full disclosure. The duty is one that is
imposed by the special relationship of trust and confidence. As such, Rachel entrusted Defendants
with her legal matters, including specifically, legal matters relating to her divorce;
9. While in the course and scope of providing legal services to Rachel, the Lawyer Defendants
repeatedly failed in their duty to Rachel, examples include, but are not limited to: providing
incorrect tax advice; allowing exorbitant billing against the community estate by third parties;
runing up exorbitant bills of their own, knowing that such bills would be at a minimum mirrored
by opposing counsel; not managing expert witness fees; encouraging and incurring unnecessary
security costs; charging for external litigation without an agreement, including for their own
defense in that litigation; not disclosing conflicts of interest in representing other parties or in
business relationships; mishandling the challenges and opportunities presented in the divorce vis­
a-vis the bankruptcy; making unauthorized disclosures of Rachel's confidential information to
third parties; failing to make proper disclosures to Rachel regarding the status of her case; failing
to pursue reasonable settlement; and engaging in unreasonable, unnecessary and incorrect billing
practices. Examples of such failures are detailed below;
10. In addition, please see Plaintiffs current pleadings, all depositions and discovery responses
in this case;
11. Plaintiff reserves the right to supplement this disclosure pursuant to the Texas Rules of
Civil Procedure;
Failure to Pursue Settlement Opportunities
12. While in the course and scope of providing legal services, the Lawyer Defendants never
disclosed that given the waste that was occurring on behalf of Michael Brown, such monies would
5
be lost forever to the community estate, and that any victory, in any court, of a judgment after such
assets were widely dissipated, spent and squandered, would be of no value to Rachel, and therefore
settlement was not only necessary, but absolutely essential in the present circumstances in which
they found themselves;
13. While in the course and scope of providing legal services, the Lawyer Defendants failed to
recommend to Rachel that she mediate the divorce proceedings with Michael Brown;
14. While in the comse and scope of providing legal services, the Lawyer Defendants refused
to engage, or adequately engage, in settlement discussions with the opposing side;
15. While in the course and scope of providing legal services, the Lawyer Defendants refused
to engage, or adequately engage, in settlement discussions1 even after it was well known that
tremendous amounts of waste was occurring;
16. While in the course and scope of providing legal services, the Lawyer Defendants
conditioned any discussion of settlement upon payment of their past due attorneys' fees, thereby
subordinating the interest of the client to their own financial interests, and negligently causing
further depletion of the estate and damage to Rachel's claims;
17. While in the course and scope of providing legal services, the Lawyer Defendants made
several representations to Rachel that she would be "the richest woman in Texas," would "own the
business," would get a tremendous amount of money, and should reject settlement offers that did
not involve vast sums of money - accordingly, the Lawyer Defendants counseled Rachel to reject
any effort in settlement and they themselves refused to engage in settlement discussions;
18. While in the course and scope of providing legal services, the Lawyer Defendants never
disclosed that given the waste that was occurring on behalf of Michael Brown, such monies would
be lost forever to the community estate, and that any victory, in any court, of a judgment after such
assets were widely dissipated, spent and squandered, would be of no value to Rachel, and therefore
settlement was not only necessary, but absolutely essential in the present circumstances in which
they found themselves;
19. While in the comse and scope of providing legal services, the Lawyer Defendants also
negligently failed to inform Rachel that Mr. Grange's actions were "decreasing" not "increasing"
the estate, further supporting the need for settlement;
20. This includes the fact, that on multiple occasions, the Lawyer Defendants refused to
entertain settlement offers from Michael Brown's attorneys to resolve the case, not only did the
Defendants refuse to accept any offer they were given, and recommended to Rachel that she did
not accept any offer that were given, the Defendants, refused to discuss, or entertain, settlement
offers, or to discuss, or genuinely discuss, the issue of settlement;
2 1. While in the course and scope of providing legal services, the Lawyer Defendants
recommended to Rachel that she refuse settlement offers, that she refuse to entertain settlement
discussions, and that she refuse to discuss settlement;
22. While in the course and scope of providing legal services, the Lawyer Defendants failed to
take into account that the value of the business that was being proposed by them (well in excess
of $100 million) was, at worst, fictitious, and, at best, merely an optimistic estimate - upon coming
up with such an inflated value, the Lawyer Defendants were encouraging their client to forego
money that would provide ease and comfort for her and her children for the remainder of her life
6
the Lawyer Defendants did this without any consideration of the economic risk to which she was
subjecting herself for example, Rachel was not in a position to tum down millions of dollars in
settlement for she had no other financial resources available to her to amass such a great amount
of money;
23. While in the course and scope of providing legal services, the Lawyer Defendants in effect
wanted Rachel to gamble upon a larger recovery than for the recovery that would have guaranteed
her a lifetime of comfort, and instead advised her to gamble for a much larger sum the only
realistic objective would be to prolong the imposition of tremendous attorneys' fees, including the
attomeys' fees charged by the Lawyer Defendants to Racehl, as well as the attorneys� fees charged
by Michael Brown's attorneys, both of which were a substantial burden to the estate;
24. While in the course and scope of providing legal services, the Lawyer Defendants failed to
take advantage of settlement overtures, settlement opp01tunities, settlement discussions, and
settlement offers that would have provided a lifetime of security for Rachel;
25. While in the course and scope of providing legal services, the Lawyer Defendants failed to
take advantage of the opportunity, after multiple sanctions orders, to negotiate any agreement for
Rachel other than payment of attorneys' fees and failed to take advantage of any negotiating
leverage that might be had as a result of such sanctions, and failed to negotiate a benefit for their
client but negotiated solely to obtain a benefit for themselves;
26. While in the course and scope of providing legal services, the Lawyer Defendants failed to
have a discussion with Rachel concerning the fact that the necessity of settlement was paramount
given the wide dissipation and dissemination of the community estate property by her husband,
Michael Brown, and given the failure of the trial court to appoint a receiver;
27. While in the course and scope of providing legal services, the Lawyer Defendants failed to
disclose to Rachel that other creditors to the business assets of Michael Brown existed, and those
claims totaled tens of millions of dollars, if not more, and that the existence of those claims, if
successful, would completely dissipate and wipe out the community estate, if she did not achieve
a timely disposition of this matter;
28. While in the course and scope of providing legal services, the Lawyer Defendants failed
to, during periods of negotiation (for example, negotiations to bring current past-due fees) failed
to negotiate one single benefit for Rachel other than payment of legal fees, and failed to negotiate
for her the ownership of any piece of personalty. Examples include:
a. Failure to obtain Rachel the title to even one vehicle, in spite of the fact that over
50 to 60 vehicles were owned by the parties at the beginning of the proceedings;
b. Failure to provide Rachel title to any legal property of any type or nature;
c. Failure to obtain an agreement that Rachel.owned her jewelry, furs, coats and
personalty independent of any right of Michael Brown; and
d. Failure to find that Rachel owned any personalty, including any furnishings in the
house, or other items;
Lack of Proper Disclosures to Client
29. While in the course and scope of providing legal services, the Lawyer Defendants failed to
keep Rachel properly notified about the status of her case, failed to make proper disclosures of
7
material developments, and failed to advise her about the impact certain courses of actions might
have upon her legal rights and the value of the community estate;
30. While in the course and scope of providing legal services, the Lawyer Defendants failed to
advise Rachel that it would be necessary to mediate her case and/or settle her case as quickly as
possible, to prevent dissipation of the community estate to third parties through the wrongful,
criminal acts by her husband, Michael Brown;
31. While in the course and scope of providing legal services, the Lawyer Defendants failed to
advise Rachel that the failure of the family trial court to appoint a receiver to oversee the
administration of the community estate, would result in Michael Brown's continued widespread
and unbelievable dissemination of community assets in a way such that they could not be returned
to or captured by, Rachel;
32. While in the course and scope of providing legal services, the Lawyer Defendants failed in
general to keep Rachel involved or info1med on many significant issues;
33. While in the course and scope of providing legal services, the Lawyer Defendants, for
example, never informed Rachel in writing of the risks outlined in all of these disclosures,
including, by way of example, the IRS problems, the billing problems with third parties, the expert
witness problems, the limitations on expert witness testimony, the fact that Michael Brown had
little realistic chance of obtaining custody of the children, and other matters;
34. At all levels, while in the course and scope of providing legal services, the Lawyer
Defendants failed to keep Rachel informed of significant developments in her case;
35. For example, while in the course and scope of providing legal services, the Lawyer
Defendants did not forward any of the Master in Chancery billings to Rachel, or inform Rachel
that there was excessive billing or an increase in hourly rate, thereby further depleting the estate;
36. While in the course and scope of providing legal services, the Lawyer Defendants did not
forward any of Claudia Canales' (the ad !item) billings to Rachel, or inform Rachel that there was
excessive billing or an increase in hourly rate, thereby further depleting the estate;
37. While in the course and scope of providing legal services, the Lawyer Defendants did not
forward to Rachel any of the billings regarding opposing counsel, or inform Rachel that there was
excessive billing or an increase in hourly rate, thereby further depleting the estate;
38. While in the course and scope of providing legal services, the Lawyer Defendants did not
forward any of their own billings to Rachel, or inform Rachel that there was excessive billing or
an increase in hourly rate, thereby further depleting the estate;
39. All of this was a failure to keep Rachel informed of significant developments in her case,
which, given the fact the Lawyer Defendants generally billed millions of dollars, is ridiculous;
40. The Lawyer Defendants failed in their fiduciary duty to explain to Rachel that many of the
actions being taken were being taken solely in order to benefit the attorneys, and were not being
used for leverage to obtain benefits for her;
41. While in the course and scope of providing legal services, the Lawyer Defendants did not
explain to Rachel the realistic consequence of the divorce court refusing to appoint a receiver and
leaving Michael Brown in charge of the major assets of the community estate;
8
42. While in the course and scope of providing legal services, the Lawyer Defendants failed to
explain to Rachel that she should not want to try to "take over the business," and should not want
to "acquire control of the business," because Rachel had no experience in how to run a hand
surgery business, is not a medical doctor, is not a media consultant, and has no experience in
running a business generating millions of dollars a year;
43. While in the course and scope of providing legal services, the Lawyer Defendants failed to
explain to Rachel that she needed assets that would provide her financial security, and not
contingent, speculative assets of unknown value such as a closely held business associated with a
criminal, mentally unstable person such as Michael Brown;
44. While in the course and scope of providing legal services, the Lawyer Defendants never
disclosed that, by not providing Rachel copies of the legal invoices for which she was being
charged, and by providing these legal invoices to the Master of the Family Law Court, that he was
creating a system whereby they could argue that Rachel was barred from contesting the amount of
those invoices, or seeking a refund of those amounts as being more than reasonable and necessary
such risk and consequence, as has now been argued by the Defendants to be applicable, was
never explained to Rachel, nor disclosed to her in the course and scope of her representation;
Unauthorized Disclosures to Third Parties
45. While in the course and scope of providing legal services, the Lawyer Defendants engaged
in conduct whereby they disclosed Rachel's confidential information to third parties, including the
press, without Rachel's informed consent for such disclosures;
46. While in the course and scope of providing legal services, the Lawyer Defendants engaged
in public unprofessional behavior and conduct without regard for the impact such conduct would
have upon Rachel and without Rachel's authorization;
47. While in the course and scope of providing legal services, the Lawyer Defendants failed to
inform Rachel that Marshall Davis Brown, had referred to the opposing counsel publicly as a "c
" and that upon being confronted with the evidence that he had done so, replied that "I didn't
say it to her, I only said it to her male co-counsel" the Lawyer Defendants failed to disclose to
Rachel the detrimental effect that would have on her reputation, her media status, her standing
within the community, the effect it would have upon her children, and the effect it would have
upon the Divorce court's willingness to expedite and hear the resolution of her suit;
48. While in the course and scope of providing legal services, the Lawyer Defendants failed to
inform Marshall Davis Brown, or Rachel, that profanely defamatory remarks directed to the gender
of opposing counsel, would be detrimental to their client and would not work in their client's best
interest;
49. While in the course and scope of providing legal services, the Lawyer Defendants had
unauthorized discussions with the press regarding information that was confidential to Rachel
(please note that confidential information under Rule 1.05 of the Texas Disciplinary Rules,
includes both privileged and unprivileged information);
50. While in the course and scope of providing legal services, the Lawyer Defendants
repeatedly made unauthorized disclosures to the media without Rachel's consent and many times
without her knowledge;
9
51. While in the course and scope of providing legal services, the Lawyer Defendants referred
to opposing counsel as a "c _ ,""flat chested," and made other sexually, and gender derogatory,
remarks;
52. While in the course and scope of providing legal services, the Lawyer Defendants never
sought Rachel's permission to make such inf ammatory remarks;
53. While in the course and scope of providing legal services, the Lawyer Defendants were not
advancing Rache! 's cause when they made such inflammatory remarks;
54. While in the course and scope of providing legal services, the Lawyer Defendants, upon
being challenged for such conduct, did not deny or apologize, but instead took a sexist, derogatory,
and backwards position claiming that they did not say it to the female attorney's "face;"
55. While in the course and scope of providing legal services, the Lawyer Defendants billed
Rachel for the time spent in defending themselves against a motion for sanctions based upon their
inflammatory remarks;
56. While in the course and scope of providing legal services, the Lawyer Defendants accused
Michael Brown in court of hiring a hit man to kill Rachel;
57. While in the course and scope of providing legal services, the Lawyer Defendants referred
to Michael Brown as a "piece of s __ _" in open court;
58. While in the course and scope of providing legal services, the Lawyer Defendants upon
being challenged by Michael Brown's counsel that such conduct would hrm the community
estate, and would harm the business interest of both Michael Brown and Rachel, the Lawyer
Defendants continued to engage in this conduct;
59. Even after Michael Brown died, Defendant Marshall Davis Brown contacted media to give
statements about Michael Brown's death, without the permission of his client to do so;
60. While in the course and scope of providing legal services, the Lawyer Defendants never
tried to coordinate with Rachel the type of statement that should be given to the press, and whether
statements should be given to the press, and what statements, if any, should be given to the press;
Bankruptcy Proceedings
61. While in the course and scope of providing legal services, the Lawyer Defendants provided
inadequate representation on issues brought into the bankruptcy court and failed to properly
preserve and defend Rachel's rights in that venue;
62. While in the course and scope of providing legal services, the Lawyer Defendants failed to
explain to Rachel the fact that serious third party expenditures, including the expenditure of
attorneys' fees on both sides, in the miJlions of dollars, could impact Michael Brown's decision to
take bankruptcy;
63. While in the course and scope of providing legal services, the Lawyer Defendants failed to
anticipate the effect that these billings could cause Michael Brown to undertake desperate
measures (either personally or otherwise), to avoid continuing monthly liabilities or charges;
64. While in the course and scope of providing legal services, the Lawyer Defendants never
disclosed that bankruptcy proceedings on the prui of Michael Brown would be disastrous in that it
would give the bankruptcy court control of all community assets, and power to sell those assets,
10
and power in terms of the sales/use/disposition of those assets, and that Rachel, as a member of
the community, would be an unsecured creditor;
65. While in the course and scope of providing legal services, the Lawyer Defendants failed to
realize that the filing of bankruptcy by Michael Brown in Florida in early 2013 was a disastrous
event in terms of protecting the rights of Rachel;
66. While in the course and scope of providing legal services, the Lawyer Defendants failed to
explain to Rachel that, upon filing the Chapter 11 proceeding in Florida, the court might convert a
Chapter 11 bankruptcy proceeding to a Chapter 7 bankruptcy proceeding, in effect subordinating
all of her rights;
67. While in the course and scope of providing legal services, the unreasonable attitude of the
Lawyer Defendants regarding discussions of interim solutions, or obtaining interim relief,
continued even after the Florida bankruptcy was filed;
68. This course of action on the part of the Lawyer Defendants continued even after the Texas
bankruptcy was filed;
69. While in the course and scope of providing legal services, the Lawyer Defendants failed to
realize that once the bankruptcy court was in control of the community estate, that Rachel's rights
in the community estate were severely and unbelievably diminished;
70. While in the course and scope of providing legal services, the Lawyer Defendants failed to
inform Rachel that the filing of the bankruptcy in Florida was a disastrous event, and that she
should try to attempt all efforts at resolution as quickly as possible;
71. When the Texas bankruptcy was then filed, the Lawyer Defendants failed to realize that
this seriously dimjnished the amount of the estate;
72. While in the course and scope of providing legal services, the Lawyer Defendants failed to
tell Rachel the implications of the Florida bankruptcy, the Grange appointment, and the Texas
bankruptcy;
The Appointment of Mr. Grange in the Bankruptcy Proceedings
73. While in the course and scope of providing legal services, the Lawyer Defendants agreed
to the CRO agreement in the bankruptcy court, which set up the process whereby Mr. Grange
would be the receiver;
74. While in the course and scope of providing legal services, the Lawyer Defendants failed to
object to the CRO agreement in Florida which effectively put Mr. Grange in charge of Michael
Brown's companies;
75. While in the course and scope of providing legal services, the Lawyer Defendants failed to
anticipate that Mr. Grange might have no expertise, or ability, to manage the business of Michael
Brown;
76. While in the course and scope of providing legal services, the Lawyer Defendants failed to
object to the appointment of Grange, as a Receiver, in the bankruptcy proceedings in Florida;
instead the attorneys for Rachel recommended that she agree to the appointment of Grange and
agree to the appointment of a Receiver, when in fact the risk of appointing Grange is that he would
dissipate, sell, and dispose the community assets which would wreck the business and wreck any
hope of the community estate having any chance of survival;
11
77. While in the course and scope of providing legal services, the Lawyer Defendants failed to
understand during the period of time that Mr. Grange was handling things that the community
estate was being diminished and/or irrevocably diminished;
78. While in the course and scope of providing legal services, the unreasonable attitude of the
Lawyer Defendants settlement against continued, even once Mr. Grange had been made a receiver;
79. This course of action on the part of the Lawyer Defendants continued even after the
Defendants realized that Mr. Grange was pursuing a course of action that the Lawyer Defendants
did not find acceptable;
80. While in the course and scope of providing legal services, the Lawyer Defendants failed to
object to Mr. Grange billing for time to the file before he was appointed;
81. While in the course and scope of providing legal services, the Lawyer Defendants failed to
object to Mr. Grange billing more per hour than the court order allowed;
82. While in the course and scope of providing legal services, the Lawyer Defendants failed to
object to Mr. Grange's request to increase his hourly rate;
83. These same acts and omissions apply both to the bills and charges of Mr. Grange, and to
the bills and charges of Ms. Claudia Canales as well;
DSO Funds & the Bankruptcy Proceedings
84. The attorney's fees allowed to be paid pursuant to the Domestic Support Order ("DSO"),
or the Temporary Orders in the Family Court, were to allow Rachel to recover attorney's fees. The
Defendants, including Marshall Davis Brown, Jedediah Moffett and Robert Hoffman appropriated
that opportunity for themselves and are trying to take the money that was ordered to be paid to
Rachel (so that she could pay reasonable and necessary attorneys' fees) and appropriate that
opportunity for themselves;
85. While in the course and scope of providing legal services, the Lawyer Defendants breached
their duty when they filed a claim in the bankruptcy court in their own names, and allowed a claim
to be filed in the name of Marshall Davis Brown, when in reality, such claim belonged to Rachel.
Such action was a breach of fiduciary duty, or attempted theft, in order to put their interests ahead
of their client's interest;
86. When the Texas bankruptcy was filed, the Lawyer Defendants failed to file a DSO claim
on behalf of Rachel for the attorneys' fees, which Rachel had been awarded pursuant to the DSO;
87. While in the course and scope of providing legal services, the Lawyer Defendants instead,
intentionally, or negligently, or by breach of their fiduciary duties, filed for themselves, a DSO
claim, instead of filing a claim for those attorneys' fees for Rachel;
88. Marshall Davis Brown filed the DSO claim, in bankruptcy court, not in the name of Rachel,
who was his client, and to whom he owed a fiduciary duty, but rather filed the DSO claim in
bankruptcy court in his own name this was for the express purpose of obtaining the money
himself, as opposed to having the money flow to Rachel, who is the party entitled to same;
89. The Lawyer Defendants have refused requests to hold any monies recovered through the
bankruptcy proceeding and DSO claims in escrow, or the hands of an impartial third party. Such
conduct is wrongful under the rules and standards which govern attorney behavior, such conduct
12
is also inappropriate under Rule l .14(c) of the Texas Disciplinary Rules, which are evidentiary of
the standards to which attorneys must hold themselves;
Billing by Third Parties & Overburdening the Community Estate
90. While in the course and scope of providing legal services, the Lawyer Defendants failed to
advise Rachel regarding the billings against the community estate by third parties and opposing
counsel and the resulting overburdening of the community estate;
91. While in the course and scope of providing legal services, the Lawyer Defendants never
disclosed that given the waste that was occurring on behalf of Respondent Michael Brown, such
monies would be lost forever to the community estate, and that any victory, in any coutt, of a
judgment after such assets were widely dissipated, spent and squandered, would be of no value to
Rachel, and therefore settlement was not only necessary, but absolutely essential in the present
circumstances in which they found themselves;
92. While in the course and scope of providing legal services, the Lawyer Defendants failed to
protect the community estate, in particular to protect Rachel, from unwarranted billings by third
parties;
93. While in the �ourse and scope of providing legal services, the Lawyer Defendants failed to
object to the attorney's fees that were being incurred by Claudia Canales, who was appointed ad
!item;
94. While in the course and scope of providing legal services, the Lawyer Defendants failed to
object to Ms. Canales' participation in the discovery depositions, hearings, and proceedings, when
such were not necessary;
95. While in the course and scope of providing legal services, the Lawyer Defendants failed to
object to the rates Ms. Canales was charging, or the fact that she increased her rates almost
immediately after starting on the case;
96. While in the course and scope of providing legal services, the Lawyer Defendants failed
to object to Ms. Canales participation, given that Michael Brown was a known drug user, was
living an incredibly crazy lifestyle, was not exercising his visitation rights with the children, gave
no emotional, or life support to the children in connection with raising them, and had virtually no
chance of ever obtaining custody;
97. While in the course and scope of providing legal services, the Lawyer Defendants failed to
appreciate the reality that Rachel was going to be the primary custodial parent, and that Michael
Brown had no significant chance of ever obtaining custody of the children given that, incurring
hundreds of thousands of dollars for ad lit em fees was totally unnecessary, duplicative of the efforts
of others, and not appropriate, the Defendants failed to, even once, object to Ms. Canales' general
participation, Ms. Canales' fees, or Ms. Canales' increased fees, or Ms. Canales' participation in
multiple events;
98. While in the course and scope of providing legal services, the Lawyer Defendants failed to
object to the appointment of a Master in Chancery;
99. While in the course and scope of providing legal services, the Lawyer Defendants failed to
object to the expenses that were incurred by the Master in Chancery;
13
100. While in the course and scope of providing legal services, the Lawyer Defendants
failed to object to the fees of the Master in Chancery;
101. While in the course and scope of providing legal services, the Lawyer Defendants
failed to object to the participation of the Master in Chancery in numerous events in which he had
minimal reason to appear;
102. While in the course and scope of providing legal services, the Lawyer Defendants
failed to explain, in detail, to Rachel how much money was being paid to the Master in Chancery,
the ad !item, and others, and did not send her copies of the bills incurred by third parties, or explain
why they were being paid or inform her of the risk of unnecessary depletion of the estate caused
by these third party billings;
103. While in the course and scope of providing legal services, the Lawyer Defendants
failed to assert, even once, that the fees being charged by the Master in Chancery, and other third
parties, were inappropriate or excessive;
104. While in the course and scope of providing legal services, the Lawyer Defendants,
never once objected to the fees of ad !item, or the Master in Chancery, or other third parties, and
therefore Defendants failed to preserve any error on those points such that an error could have
been brought to the attention of the trial court, or the error could have been brought to the court of
appeals;
105. While in the course and scope of providing legal services, the Lawyer Defendants
failed to negotiate with counsel for Michael Brown, regarding limitations and the role of
participation of the Master in Chancery and/or limitations on the participation of the ad !item;
106. While in the course and scope of providing legal services, the Lawyer Defendants
never explained to Rachel any of the circumstances regarding the ad litem fees, or the Master's
fees, or why they were so high, or why they were failing to object;
107. While in the course and scope of providing legal services, the Lawyer Defendants
never obtained Rachel's consent to overtly, and tacitly, agree to the exorbitant fees charged by the
Master, and to agree to the exorbitant fees being charged by the ad !item or the Master;
108. While in the course and scope of providing legal services, the Lawyer Defendants
failed to give Raebel copies of detailed, itemized billings that were incurred by all of these third
parties, such as expert witnesses, the Master in Chancery, and the ad !item;
I 09. While in the course and scope of providing legal services, the Lawyer Defendants
failed to explain to Rachel the detrimental effect that exorbitant fees for millions of dollars being
incurred by third parties would have upon the community estate, and upon the proceedings in
general;
110. While in the course and scope of providing legal services, the Lawyer Defendants
failed to explain to Rachel that third party expenditures, including the expenditure of attorneys'
fees on both sides, could seriously impair the ability of the community estate to continue business
successfully;
111. While in the course and scope of providing legal services, the Lawyer Defendants
failed to explain to Rachel the fact that serious third party expenditures, including the expenditure
of attorneys' fees on both sides, in the millions of dollars, could impact Michael Brown's decision
to take bankruptcy;
14
112. While in the course and scope of providing legal services, the Lawyer Defendants
failed to anticipate the effect that these billings could cause Michael Brown to undertake desperate
measures (either personally or otherwise), to avoid continuing monthly liabilities or charges;
113. While in the course and scope of providing legal services, the Lawyer Defendants
failed to object, to preserve error, or to try to limit third party fees and expenses;
114. While in the course and scope of providing legal services, the Lawyer Defendants
failed to adequately explain, or explain at all, to Rachel the consequences of their decisions to
overtly, and tacitly, agree to all such fees;
115. While in the course and scope of providing legal services, the Lawyer Defendants
failed to try to minimize the time being spent by their adversaries and third parties in connection
with the case, given that any money being spent on attorneys' fees by Michael Brown would also
diminish the community estate;
1 16. Assuming opposing counsel was spending as much, or more than, the Defendants
on attorneys' fees, the Defendants should have realized this would be an mmecessary burden on
the community estate;
117. While in the course and scope of providing legal services, the Lawyer Defendants
should have taken steps to try to minimize the actions taken by their adversaries, with the view
towards trying to save, and be efficient with, community assets;
118. If the Defendants were going to bill$11 million, and realize their adversaries would
bill more than them, (which would mean the total attorneys' fees would be in excess of$22 million,
not counting ad !item, Master in Chancery, exert witnesses, etc.), then it becomes immediately
obvious that this becomes an unbelievable burden upon the community estate;
119. While in the course and scope of providing legal services, the Lawyer Defendants
should have realized the burden upon the estate and took actions to try to minimize this problem;
Expert Witnesses
120. While in the course and scope of providing legal services, the Lawyer Defendants
failed to reign in or curtail the exorbitant fees being charged by third parties, specifically including
expert witnesses;
121. While in the course and scope of providing legal services, the Lawyer Defendants
failed to take reasonable measures to curb the approximately one million dollars that was being
charged by one of the expert witnesses hired by Defendants;
122. While in the course and scope of providing legal services, the Lawyer Defendants
failed to summarize and curtail the information given to the expert witness, so as to minimize his
fees;
123. While in the course and scope of providing legal services, the Lawyer Defendants
failed to take any actions to minimize the fees of the expert witnesses that they retained;
124. The expert witness fees are outrageously high, and would have seriously impaired
the expert witness's ability to credibly testify before any impartial trier of fact;
125. There are several examples where the Lawyer Defendants, while in the course and
scope of providing legal services, failed to curtail the expert witness's participation-for example,
15
the expert witness attended several depositions (which was not necessary), the expert witness
undertook issues involving the review of the Defendants' own fees and billings (which would have
been the responsibility of the Defendants, not Rachel);
126. While in the course and scope of providing legal services, the Lawyer Defendants
also failed to explain any of these issues, concerning the use and applicable fees of expert
witnesses, to Rachel;
127. While in the course and scope of providing legal services, the Lawyer Defendants,
in addition to letting the expert witness run amok in billing excessive charges, allowed the expert
witness to develop a damage model that had serious deficiencies in terms of being fair, had serious
deficiencies in terms of being able to be used in court, and had serious deficiencies in terms of
being able to persuade opposing counsel to use it as a basis for settlement;
128. While in the course and scope of providing legal services, the Lawyer Defendants
failed to develop a reasonable expert witness damage model regarding the value of the community
estate;
129. While in the course and scope of providing legal services, the Lawyer Defendants
tried to unduly inflate the value of the community estate beyond the bounds of reality;
130. While in the course and scope of providing legal services, the Lawyer Defendants
came up with a damage model involving multiples of earnings, that would only be applicable in a
setting of a more conventional type of business, run by conventional management;
131. While in the course and scope of providing legal services, the Lawyer Defendants
hired expert witnesses that falsely inflated the value of the community estate under the theory that
the community estate was worth a "multiple" of the yearly earnings when in fact such multiple
analysis would only be applicable if:
a. the owner of the company was capable, able, ready and willing to run the company in
an efficient and well organized manner;
b. the company would stay in business for a number of years (for example, for the
company to have a value of a multiple of 6, the company would have to stay in business
for several years in order for a prospective "buyer of the business" to be able to justify
paying a multiple of 6 times the EBITDA of the company; and
c. the Lawyer Defendants failed to explain the risks that such an inflated analysis would
harm the chance of expedited resolution, and harm the chance of any peaceful
resolution;
132. While in the course and scope of providing legal services, the Lawyer Defendants
failed to explain the expert witness's damage model to Rachel, during the pendency of the divorce,
and how it would affect the divorce;
133. While in the course and scope of providing legal services, the Lawyer Defendants
failed to develop a reasonable damage model, with a reasonable expert, with reasonable credibility
in order to reasonably value the community estate;
134. While in the course and scope of providing legal services, the Lawyer Defendants
failed to explain to Rachel, that, as was later shown by the actual values developed by the
16
bankruptcy estate, and by the actual values developed by the receivers, that the damage model they
were using was unrealistic in terms of value;
135. While in the course and scope of providing legal services, the Lawyer Defendants
failed to explain to Rachel that the damage model was based on a fictitious assumption, namely,
that there were would be a potential buyer for a multiple of earnings of the business, and that this
"legal fiction" had a substantial possibility that it would not be successful;
136. While in the course and scope of providing legal services, the Lawyer Defendants
failed to explain to Rachel that this "legal fiction" of a damage model could actually be detrimental
in terms of trying to get the case settled and/or resolved;
137. While in the course and scope of providing legal services, the Lawyer Defendants
failed to account, in their damage model, for the debts, liabilities, lawsuits, and contingent
liabilities, of the businesses being handled by Michael Brown, and later by Mr. Grange;
Unnecessary Security Costs
138. While in the course and scope of providing legal services, the Lawyer Defendants
incurred exorbitant, unreasonable, security costs in connection with the Divorce, and incurred
exorbitant, extraneous unrelated security costs, all of which was billed at Rachel's expense;
139. Likewise, the Lawyer Defendants obtained security for themselves at Rachel's
expense, without ever obtaining any agreement in writing from her to do so;
140. While in the course and scope of providing legal services, the Lawyer Defendants
did not disclose a conflict of interest with security forces that had been retained, since it is believed
that Marshall Davis Brown had some sort of business relationship with one, or more, of the security
agencies that were actually allowed to bill exorbitant amounts of money;
141. Further, the amount of security costs incurred were ridiculously exorbitant;
142. Further, while in the course and scope of providing legal services, the Lawyer
Defendants obtained "security" for Rachel that was beyond reasonable;
143. When one of the security companies sued Rachel, the Lawyer Defendants did not
resolve that matter in a timely and efficient matter;
144. Further, one of the security companies, arranged for by the Lawyer Defendants,
sued Rachel, and the Lawyer Defendants did not third party in Michael Brown to that lawsuit;
145. When one of the security companies sued Rachel, the Lawyer Defendants did not
remove that case to the bankruptcy court (upon the filing of the bankruptcy);
146. When one of the security companies sued Rachel, the Lawyer Defendants did not
take the position that the obligation was part of the domestic support order, and therefore should
be paid by the bankruptcy court;
14 7. When one of the security companies sued Rachel, the Lawyer Defendants withdrew
from her representation and refused to assist her through resolution of the case, even though the
entire reason the security company had been hired, and the alleged exorbitant costs incurred, had
been at the sole request of the Lawyer Defendants themselves;
17
IRS Issues
148. While in the course and scope of providing legal services, the Lawyer Defendants
gave improper, unreasonable, and unrealistic tax advice and failed to provide proper disclosures
and recommendations regarding tax consequences to Rachel;
149. While in the course and scope of providing legal services, the Lawyer Defendants
gave Rachel the recommendation to sign the 2010 tax return, when in fact, such was improper
advice;
150. While in the course and scope of providing legal services, the Lawyer Defendants
failed to tell Rachel that for 2010 she should have filed her taxes separately;
151. While in the course and scope of providing legal services, the Lawyer Defendants
failed to inform Rachel of the "Innocent Spouse Doctrine," and the difficulties in applying that
Doctrine, and failed to tell Rachel that even if she was successful in urging that doctrine, there
would be costs involved in terms ofIRS entanglement, attorney's fees, etc.;
152. While in the course and scope of providing legal services, the Lawyer Defendants
failed to inform Rachel that the IRS (or for that matter, any bankruptcy trustee), might take the
position that she had made unwarranted distributions from the estate, or had obtained benefits from
the estate, by drawing out millions of dollars for alleged "attorney's fees," alleged "experts,"
alleged "divorce settlement services," alleged "security services," etc.;
15 3. While in the course and scope of providing legal services, the Lawyer Defendants
failed, even though Defendants charged millions of dollars to Rachel, to obtain competent tax
advice for Rachel concerning the years 2010, 2011, 2012, and 2013;
154. While in the course and scope of providing legal services, the Lawyer Defendants
never disclosed the risk of signing the 2010 tax return, even though the risk included being
responsible for millions of dollars in unpaid IRS debt, and the risk that she would not be adjudged
to be a "Innocent Spouse" under Internal Revenue Service Guidelines;
155. While in the course and scope of providing legal services, the Lawyer Defendants
never disclosed that the amounts that were being paid to the attorneys for "Rachel Brown" might
be adjudged to be taxable income to her, as a "distribution" from the community estate, and
therefore could create a potentially taxable event for Rachel;
External Litigation
156. While in the course and scope of providing legal services, the Lawyer Defendants
were sued by Michael Brown in connection with intellectual property rights, and, without any
written agreement from Rachel, or other agreement from Rachel, regarding such attorneys' fees,
charged all of their attorneys' fees in connection with the defense of the suit to Rachel;
157. While in the course and scope of providing legal services, the Lawyer Defendants
did not have an agreement with Rachel to charge her for attorneys' fees that were incurred in
defense of the suit, but charged Rachel anyway;
158. While in the course and scope of providing legal services, the Lawyer Defendants
never sought to obtain to Rachel's permission to bill her for the defense costs for the case in which
they were defendants;
18
159. While in the course and scope of providing legal services, the Lawyer Defendants
never tried to seek an agreement with Rachel that such fees were properly attributable to Rachel;
160. While in the course and scope of providing legal services, the Lawyer Defendants
did not even send copies of the bills detailing defense costs that were incurred by them when they
were defendants;
161. While in the course and scope of providing legal services, the Lawyer Defendants
never even discussed with Raebel that they were charging her with the defense costs incurred in
connection with this litigation, much less discuss it in writing or obtain her agreement or assent to
same;
162. There is nothing in Defendants' contracts with Rachel, wherein the Defendants
agreed to provide legal services in the divorce (even assuming theDefendants had complied with
such contract), that would allow Defendants to charge Rachel for the attorneys' fees that they
incurred while they were defendants in another action, nor was there any effort to minimize costs
or expenses of their attorneys in that action;
163. While in the course and scope of providing legal services, the Lawyer Defendants
failed to discuss with Rachel the possible conflict of interest that would arise with them being
named joint defendants in external litigation;
Conflict of Interest with Darlina Barone ("Darlina")
164. While in the course and scope of providing legal services, the Lawyer Defendants
undertook representation ofDarlina Barone on matters involving her ex-husband, Michael Brown,
that directly impacted the community estate of Michael Brown and Rachel, while simultaneously
representing Rachel in her Divorce from Michael Brown;
165. While in the course and scope of providing legal services, the Lawyer Defendants
failed to adequately disclosure to Rachel the conflict resulting from the simultaneous
representation of Darlina and Rachel;
166. While in the course and scope of providing legal services, the Lawyer Defendants
failed to disclose the fact that the representation of Darlina would result in the recovery of
unbelievably large amounts of attorneys' fees, and the expenditure of unbelievably large amounts
of the community assets, that were rendered in connection with the representation ofDarlina;
167. According, the representation of Darlina by the Lawyer Defendants acted to
diminish the community estate in a significant manner;
168. Further, the interests ofDarlina, in for example, whether Michael Brown should be
incarcerated, and what should happen to the future disposition of his business, and whether Rachel
should obtain a business interest, as part of her settlement of the community estate, are examples
of where the interests of Darlina were not aligned with the interests of Rachel - accordingly, the
Defendants should have not accepted dual representation of these matters, but should have
withdrawn either from the representation of Rachel, or from the representation ofDarlina, so that
their loyalty in connection with these matters would be unquestioned;
169. Instead, while in the course and scope of providing legal services, the Lawyer
Defendants decided to represent bothDarlina (at a cost of what is apparently a tremendous number
of dollars), and simultaneously attempt to represent Rachel, and never had a meaningful discussion
with Rachel about the conflict in the situation, or how it could impact Rachel, or how it could
19
impact the proceedings m connection with the entire Michael Brown
divorce/controversy/settlement;
Examples of Placing the Lawyer Defendants' Interest Before their Client's Interest
170. While in the course and scope of providing legal services, the Lawyer Defendants
consistently placed their own interests ahead of the interest of Rachel;
171. While in the course and scope of providing legal services, the Lawyer Defendants
failed to propose or develop interim solutions, as well as final solutions;
172. In general, while in the course and scope of providing legal services, the Lawyer
Defendants did not take vigorous action to set the case for trial and obtain disposition through trial;
173. While in the course and scope of providing legal services, the Lawyer Defendants
did not take adequate actions to have a receiver appointed;
174. While in the course and scope of providing legal services, the Lawyer Defendants
did not develop interim solutions even on occasions when they had an opportunity to do so (for
example, when Michael Brown was incarcerated or threatened to be incarcerated) on these
occasions, the only benefit that was obtained was the "payment of attorneys' fees;"
175. While in the course and scope of providing legal services, the Lawyer Defendants
failed to ever develop any interim solutions for Rachel, including for example, obtaining for her
clear title to a vehicle (at a later point in time, Rachel was literally without a single vehicle with
which to drive her children to school, because all of the vehicles belonged to the bankruptcy
estate);
176. While in the course and scope of providing legal services, the Lawyer Defendants
failed to obtain for Rachel a single financial asset;
177. While in the course and scope of providing legal services, the Lawyer Defendants
failed to obtain for Rachel a single declaration of property (for example, furniture, children's items,
etc.);
178. While in the course and scope of providing legal services, the Lawyer Defendants
failed to obtain for Rachel a single asset that would work to her financial benefit instead of going
to the Lawyer Defendants' own self benefit (for example, settlement of the security case charges)
on other words, on every occasion, the Lawyer Defendants undertook to place their interests
ahead of their clients;
179. While in the course and scope of providing legal services, the Lawyer Defendants
failed to sever the property issues, and thereby obtain final resolution to same, while the issues
regarding custody/visitation were still pending;
180. While in the course and scope of providing legal services, the Lawyer Defendants
failed to recognize that their opponent, Michael Brown, was a sophisticated, intelligent,
sociopathic and probably mentally ill business man, while their client Rachel was a 9th or 101h
grade high school dropout. Alternatively, if the Lawyer Defendants did realize this, they failed to
act on it;
181. While in the course and scope of providing legal services, the Lawyer Defendants
failed to recognize that the client, being a high school dropout, was unsophisticated and was
incapable of making sophisticated financial decisions without proper professional assistance;
20
182. While in the course and scope of providing legal services, the Lawyer Defendants
failed to appropriately account for the fact that Michael Brown was no longer a medical doctor,
and no longer had the right to practice medicine;
Unnecessary Billing, Overbilling, Incorrect Billing & Disgorgement
183. While in the course and scope of providing legal services, the Lawyer Defendants
engaged in multiple and repeated acts of unnecessary billing and overbilling;
184. While in the course and scope of providing legal services, the Lawyer Defendants
failed to inform Rachel that having three law firms would unnecessarily dissipate the community
estate, unnecessarily prolong the proceedings, unnecessarily duplicate legal work, and create a
burden both to the administration of the divorce proceeding, as well as unnecessarily increasing
the cost of the divorce proceeding;
185. While in the course and scope of providing legal services, the Lawyer Defendants
never disclosed that multiple personnel working on the same issue on the same file would be an
unnecessary waste of time and resources, and that one lawyer/one paralegal/one secretary could
adequately cover the issues involved, and that any extra would be wasteful;
186. All the while, while in the course and scope of providing legal services, the Lawyer
Defendants were promising Rachel that she would be "the richest women in Texas," that she would
"own the business outright," that she would be "wealthy beyond her wildest dreams," while at the
same time billing for themselves exorbitant rates, and realizing that Michael Brown was taking
actions that were detrimental to the community estate;
187. While in the course and scope of providing legal services, the Lawyer Defendants,
for example, had multiple people/lawyers/staff attend discovery conferences, hearings, court
meetings, conferences, depositions, etc. not only is this an example of overbilling, this is so
egregious that it is an example of a breach of fiduciary duty, namely putting the financial interest
of the Defendants, and the financial interests of others, ahead of the interest of the client;
188. While in the course and scope of providing legal services, the Lawyer Defendants
would provide copies of their invoices to opposing counsel for review and payment by Michael
Brown, and these bills were routinely challenged for glaring errors;
189. While in the course and scope of providing legal services, the Lawyer Defendants
failed to send billing statements to Rachel as they were incurred monthly, as required by their
contracts, and failed to explain to her that they would be taking the position, by secretly forwarding
those billing statements to the Master, and to the Court, Rachel was precluded from e_ver contesting
the propriety of such charges;
190. While in the course and scope of providing legal services, the Lawyer Defendants
retained expert witnesses, and billed for their time, and charged that time to Rachel, when the
expert witness was assigned the job to review the billings of the Lawyer Defendants, comment on
the billings of the Lawyer Defendants, defend the billings of the Lawyer Defendants, and repair/fix
the billings of the Lawyer Defendants;
191. While in the course and scope of providing legal services, the Lawyer Defendants
failed to disclose to Rachel that by having multiple attorneys appear on the statement, multiple
paralegals appear at the hearings, multiple assistants appear at the hearings, multiple security
21
appear at the hearings, all of this could be used by the court against her in determining a "just and
right" determination of her interest in the community estate;
192. While in the course and scope of providing legal services, the Lawyer Defendants
engaged in multiple acts of unnecessary billing;
193. Examples include:
a. billing 51-hours for a single person, for a single day;
b. taking multiple attorneys to attend a "Ce1tificate of Non-Appearance" of a witness, or,
even bothering to take a CNA;
c. spending time on alleged "depositions" when the witness had made it clear that they
would not be appearing;
d. sending multiple people to depositions where the witness took the 5111 Amendment;
e. sending multiple people to depositions where the purpose of the deposition was
relatively straight-forward, so that a single attorney could have covered it (for example,
whether Michael Brown had engaged in adulterous conduct on his airplane)- in those
circumstances multiple attorneys are not necessary in order to adequately cover the
subject matter that was being addressed by the deposition;
f. as a corollary, preparing for, conferencing, or dealing with those depositions (other than
minimal) would have been unnecessarily duplicative;
194. Further, the excessive, unnecessary, ridiculous over billing by the Defendants
resulted in a massive amount of work in response by their adversaries;
195. Further examples of this overburdening of the community estate by unnecessary
and overbilling would include:
a. Sending several lawyers to attend a Certificate of Non-Appearance where the witness
does not show up and has told the parties in advance that they were not going to show
up; and
b. Sending several lawyers to attend hearings;
196. While in the course and scope of providing legal services, the Lawyer Defendants
created billing statements that were unintelligible, rambling, and crossing over time period to time
period (for example, certain time periods are covered in more than one billing statement);
197. While in the course and scope of providing legal services, the Lawyer Defendants'
billing was duplicative, in that several attorneys and for that matter staff members, were billing for
jobs that could have easily been done by one person;
198. While in the course and scope of providing legal services, the Lawyer Defendants'
billing was done in order to defend their own billing practices (in other words, the attorneys, and
expert witnesses, and staff, spent time, and billed for it, to defend their previous bills that they had
incurred);
199. While in the course and scope of providing legal services, the Lawyer Defendants'
billing was inappropriate on several levels, such as for example, billing for the time spent while
they were defendants in an alternate lawsuit brought by Michael Brown;
22
200. While in the course and scope of providing legal services, the Lawyer Defendants'
billing was inappropriate of several levels, including, for example, billing Rachel for motions
dealing with the fact that Marshall Davis Brown had referred to opposing counsel by gender
derogatory terms;
201. In general, the amount of time spent by the Lawyer Defendants, their agents, staff,
employees, and hired contractors, to accomplish any given task was excessive;
202. In general, the Lawyer Defendants' billing was inappropriate given the nature of
the dispute (for example, the custody/visitation dispute did not justify the amount of billings or
time exercised in connection with that matter);
203. While in the course and scope of providing legal services, the Lawyer Defendants'
billing statements were never sent to Rachel for her approval;
204. While in the course and scope of providing legal services, the Lawyer Defendants
made no comment to Rachel that they intended to argue, that since they never sent her the bills,
and since they obtained unilateral approval of the bills by the Master in Chancery, that they would
take the position that Rachel was barred from ever contesting the bills;
205. While in the course and scope of providing legal services, the Lawyer Defendants
charged an unreasonable bill under all applicable rules governing lawyer conduct, including Texas
Supreme Court precedent, and the Texas Disciplinary Rules;
206. Under Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999), all fees should be disgorged;
207. While in the course and scope of providing legal services, the Lawyer Defendants
engaged in unnecessary discovery and depositions that were not productive (for example, deposing
witnesses within Michael Brown's organization that were merely cumulative and repetitive of
testimony that was already proven, and/or available);
208. The Lawyer Defendants pattern of unnecessary, ill-advised practice, continued in
this action when Defendant Moffett appeared on behalf of Defendant Marshall Davis Brown, and
Defendant Marshall Davis Brown appeared on behalf of Defendant Moffett, in a clear violation of
their duty to Rachel, and resulting in further unnecessary motion practice before the court;
Breach of Contract
209. Alternatively, while in the course and scope of providing legal services, Defendants
had valid contracts with Rachel; Rachel tendered performance according to the terms of the
contracts; Defendants breached those contracts; and Rachel sustained damages as a result of the
breach;
Joint Action
210. There are times herein, where an action was taken by one of the Defendants, but
was not expressly undertaken by the remaining Defendants. With respect to those occurrences:
a. Even on occasions where one Defendant did something inappropriate (an example
would be, an inappropriate characterization of opposing counsel in profane, gender
derogatory terms), the remaining Defendants did not object;
b. The remaining Defendants did not seek to distance themselves from the conduct;
c. The remaining Defendants did not repudiate the conduct;
23
d. The remaining Defendants did not approach Rachel, as her attorney, and tell her that
the conduct was inappropriate;
e. The remaining Defendants did not voice to Rachel any concerns that the conduct would
be detdmental to the resolution of the case;
f. The remaining Defendants did not express any concern that the conduct would be
detrimental to Rachel's division of the estate;
g. The remaining Defendants did not object ,to their co-counsel's conduct on these
occasions; and
h. The remaining Defendants did not apologize openly to the court or to the public for the
inappropriate behavior;
211. In other words, the three Lawyer Defendants, acted in concert, acted in unison,
acted unanimously, and if one of them undertook actions that were insanely inappropriate (failing
to object to any cost incurred, being ridiculously sexist in a public and profane way, attempting to
harm the value of the community estate by publicly deriding Michael Brown, etc.), none of the
Defendants made even the vaguest, the faintest, or even a feeble attempt to distance themselves
from the conduct; and
212. The failure to correct the conduct, distance themselves from the conduct, explain
to Rachel the consequences of the conduct, were all failures of the Defendants to act appropriately.
24
4. The amount and method of calculating economic damages.
RESPONSE:
Plaintiff is seeking a sum of money that, if paid now in cash, would fairly and reasonably
compensate her for her injuries that resulted from the occurrences in question. This is a question
for the jury to decide. Plaintiff is also specifically seeking:
1) Forfeiture of all attorneys' fees charges by Defendants;
2) Damages for loss of value in the community estate of Plaintiff as a result of the
actions of the Defendants; and
3) Attorney's fees incurred in prosecuting the underlying matters, including without
limitation, the divorce matter, the Global Security case, liabilities incurred as a
result of any claim made against Plaintiff, the bankruptcy matter, and this suit;
4) All other relief, whether general or special, whether in law or in equity, to which
Plaintiff is justly entitled;
5) Punitive damages for breach of fiduciary duty; and
6) Please see Plaintiffs current pleadings.
Plaintiff reserves the right to supplement pursuant to the Texas Rules of Civil Procedure.
Plaintiff is willing to have a jury decide appropriate amounts of damages.
25
5. The name, address, and telephone number of persons having knowledge of relevant facts,
and a brief statement of each identified person's connection with this case.
RESPONSE:
Brown, R.
c/o Jimmy Williamson
4310 Yoakum Blvd.
Houston, Harris County, Texas 77006
(713) 223-3330
Plaintiff.
Brown, Jr., M.D.
Pavlas, Brown & York, L.L.P.
Pavlas & Brown, L.L.P.
3040 Post Oak Boulevard, Suite 1020
Houston, Harris County, Texas 77056
Defendant.
Pavlas, John C.
Pavlas, Brown & York, L.L.P.
Pavlas & Brown, L.L.P.
3040 Post Oak Boulevard, Suite 1020
Houston, Harris County, Texas 77056
Managing partner of Defendants Pavlas, Brown & York, L.L.P. and Pavlas & Brown,
L.L.P.
Moffett, Jedediah D.
Law Office of Jedediah D. Moffett, P.C.
801 Congress Street, Suite 400
Houston, Harris County, Texas 77002
Defendant.
Hoffman, Robert S.
Law Office of Robert S. Hoffman, P.L.L.C.
c/o Tom Cunningham,
919 Milam, Suite 575
Houston, Texas, 77002
Defendant.
Aaronson, Geoffrey S.
Aaronson Schantz, PA
Miami Tower, 2Jlh Floor
d
100 S.E. 2n St
Miami, FL 33131
(786) 594-300
Former bankruptcy attorney for Michael Glyn Brown
26
Ambriz-Najera, Amelia
Current contact information unknown
Former in-house counsel for Brown Medical Center, Inc. and/or other entities owned
and/or controlled byMichael Brown.
Arizpe,Roxana
Current contact information unknown
Nanny for children ofR. Brown andMichael Brown.
Atlschuler,M.D.,Milton
4550 Post Oak Place, Suite 320
Houston, Texas 77027
(713) 622-5480
Performed psychological evaluation onMichael Brown. Designated as an expert witness
byMichael Brown in divorce matter.
Custodian ofRecords forMilton Atlschuler,M.D.,
4550 Post Oak Place, Suite 320,
Houston, Texas 77027
(713) 622-5480
Barnett, Gerald
Reynolds Protection, LLC
8035 E. RL Thorton Frwy, Suite 235
Dallas, Texas 75228
(214) 614-8181
Listed as person with relevant knowledge byMichael Brown in divorce matter.
Barone, Darlina
27365 Troublesome Gulch
Evergreen, Colorado 80439
Former spouse ofMichael Brown, mother ofMichael Brown's other children, former client
ofM.D. Brown.
Barone, Gino
27365 Troublesome Gulch
Evergreen, Colorado 80439
Current spouse of Darlina Barone.
27
Barrett, Dr. Stephen
c/o Linda Glover
Winstead P.C.
1100 J.P. Morgan Chase Tower
600 Travis Street
Houston, Texas 77002
(713) 650-8400
Business prutner- co-owner of business entity or entities in which Michael Brown claimed
an interest.
Barrett, Janet
Current contact information unknown
Wife of Dr. Stephen Barrett.
Barron, Beth
Harris County, Assistant District Attorney
1201 Franklin, Ste. 600
Houston, Texas 77002
(713) 755-5888
Signed supporting affidavit to OriginalPetition for Divorce in No. 2011-01272.
Bazan, Renee
3040 Post Oak Boulevard, Suite 1020
Houston, Harris County, Texas 77056
Legal assistant to Defendant M.D. Brown.
Bell, Jr., ASA, CAE, Jack L.
Certified Appraisers, Inc.
5500 Katy Freeway
Houston, Texas 77007
(713) 680 3290
Expert witness (real estate) engaged by Michael Brown in divorce matter.
Bent, Jr., Roy Theophilus
Houston Auto Appraisers
18 Quailwood Drive
Baytown, Texas 77521
(877) 845-2368
Designated expert (auto appraiser) by M.D. Brown for R. Brown in the divorce action.
Betts, Suzette
3826 Olympia Drive
Houston, Texas 77019
(713) 598-0578
Listed as person with relevant knowledge by Michael Brown in divorce matter.
28
Birdwell, Rebekah J.
Law Offices of Jeanne Caldwell McDowell
Current contact information unknown
Attorney involved in No. 2011-01272, Brown divorce matter.
Bone, James
12818 Highway 105 West, Suite 2-G
Conroe, Texas 77304
(888) 281-1618
Employee of Global Security Agency, Inc.
Brams, PhD, Jolie S.
985 Bethel Road
Columbus, Ohio 43214
(614) 457-0077
Expert witness (psychologist) designated by Michael Brown in divorce matter.
Brown, Layla
27365 Troublesome Gulch
Evergreen, Colorado 80439
Daughter of Darlina Barone and Michael Brown.
Brown, Maxwell
9110 Memorial Drive
Houston, Texas 77024
Son of R. Brown and Michael Brown.
Brown, Paul
Greenberg Traurig
1000 Louisiana, Ste 1700
Houston, Texas
(713) 374-3554
Attorney for Michael Brown (BHCF, LLC) who had to file motion to strike in Case No.
2011-01272, after Defendants filed a motion to compel including incorrect facts regarding
attorney conferencing. Attorney for Brown Medical Center, Inc.
Brown, Raquel
9110 Memorial Drive
Houston, Texas 77024
Daughter of R. Brown and Michael Brown.
Brown, Sophia Jolie
27365 Troublesome Gulch
Evergreen, Colorado 80439
Daughter of Darlina Barone and Michael Brown.
29
Brioullette, Ashley aka "Stacy Shey"
3400 Shoreline Drive, Apt. 237
Austin, Texas 78728-7446
Dancer that was employed by and/or had a relationship with Michael Brown.
Brubaker, SRA, Mike
Brubaker & Associates
7626 Hammerly Blvd.
Houston, Texas 77055
(713) 464-4666
Designated expert (real estate appraiser) by M.D. Brown for R. Brown in the divorce
action.
Bullard, John Seth
Orgain Bell & Tucker
470 Orleans, 4th Floor
Beaumont, Texas 77701
(409) 838-6412
Attorney for CommunityBank of Texas, N.A. (Vista Bank of Texas).
Burstein, Bernardo
Burstein & Associates, P.A.
744 Northeast 1251h St
Miami, FL 33161
Attorney for Mjchael Brown.
Bushong, M.D., P.A., Craig
3355 West Alabama, Suite 125
Houston, Texas 77098
(713) 622-5432
Performed court-ordered psychiatric evaluation on Respondent in 2009.
Custodian of Records for Craig Bushong, M.D., P.A.
3355 West Alabama, Suite 125
Houston, Texas 77098
(713) 622-5432
Calamia, Robert
Current contact information unknown
Canales, Claudia
Law Offices of Claudia Canales, P.C.
2112 Grand Blvd.
Pearland, Texas 77581
Amicus attorney involved in No. 2011-01272 divorce.
30
Cave, Charles "Chuck"
Current contact information unknown
Chief Financial Officer for Brown Medical Center and other entities owned and/or
controlled by Respondent. Designated as an expert witness by Michael Brown in the
divorce matter.
Champagne, M.D., Laura L.
9055 Katy Freeway, No. 418
Houston, Texas 77057
(713) 706-6131
Psychiatrist who evaluated and/or treated Michael Brown.
Chance, Steve
Steve Chance Attorney at Law, PC
119 N. Commerical St, Ste 275
Bellingham, WA 98225
(360) 676-9700
Former attorney for Michael Glyn Brown
Chavez, Elba
Current contact information unknown
Housekeeper and nanny for Michael Brown.
Citizen, Quincy
Reynolds Protection, LLC
8035 ERL Thorton Frwy, Ste 235
Dallas, Texas75228
(214) 614-8181
Listed as person with relevant knowledge by Michael Brown in divorce matter.
Cohen, Jan
Current contact information unknown
Current or former employee of Marshall Davis Brown, Jr. who worked onR. Brown file
Coming, Dr. Sheri
1331 Gemini St. Ste #104
Houston, Texas 77058
(281) 956-1035
Child counselor arranged by amicus attorney (Canales).
Correra, Hiram
1001 Brickell Bay Dr, Ste. 2600
Miami, Florida
Employee of Promed and/or other entities owned and/or controlled by Michael Brown.
31
Coole, SRA, CRP, Cary W.
The Coole Company
1630 South Gessner Road
Houston, Texas 77063
(832) 358-2800
Designated expert (real estate appraiser) by M.D. Brown for R. Brown in the divorce
action.
Coole, Debra H.
The Coole Company
1630 South Gessner Road
Houston, Texas 77063
(832) 358-2800
Designated expert (real estate appraiser) by M.D. Brown for R. Brown in the divorce
action.
Dang, M.D., Joseph
903 Bethlehem
Houston, Texas 77018
(281) 580-0554
Business partner co-owner of business entity or entities in which Michael Brown claimed
an interest.
Daniels, Terre
Current contact information unknown
Current or former employee of Robert Hoffman who worked on R. Brown file
DeBruin, Michael R.
KoonsFuller, PC
1717 McKinney Ave, Suite 1500
Dallas, Texas 75202
(214) 871-2727
Former attorney for Michael Brown in No. 2011-01272.
DeGuerin, Dick
DeGuerin & Dickson
1018 Preston Ave, 7th Floor
Houston, Texas 77002
(713) 223-5959
Former attorney for Michael Brown.
32
Duffy, Timothy A.
Burleson, LLP
900 Jackson St, Ste 330
Dallas, TX 75202
(214) 871-4900
Attorney for R. Brown, M.D. Brown, and Pavlas, Brown & York, LP in ProMed, Inc. v.
Pavlas, Brown & York, LP.
Eastland, Gardner
Current contact information unknown
Current or former employee of Marshall Davis Brown, Jr. who worked 01 R. Brown file
Ehni (Moffett), Courtney Hassell
Current contact information unknown
Cunent or former employee of Jedediah D. Moffett who worked on R. Brown file
Eisen, Mynde
Law Office ofMynde Eisen, P.C.
9800 Pagewood, Suite 3202
Houston, Texas 77263
(713) 266-2955
Rachel Brown's bankruptcy attorney.
Elkins, Jason
3230 Silver Falls Drive
Kingwood, Texas 77339
(281) 610-4052
Former pilot for aircraft owned and/or controlled by Michael Brown or by an entity owned
and/or controlled by Michael Brown.
Ewing, Stephanie
Current contact information unknown
Associate to Claudia Canales.
Eykel, lke Vanden
KoonsFuller, PC
1717 McKinney Ave, Suite 1500
Dallas, Texas 75202
(214) 871-2727
Former attorney for Michael Brown.
33
Ferrell, M.D., Jack
14310 Northbrook Drive, Suite 120
San Antonio, Texas 78232
(210) 499-5025
Performed forensic psychological evaluations on Michael Brown, Darlina, Sophia and
Layla in 2001.
Fertitta, III, Julian J.
Grimes & Fertitta P.C.
400 Louisiana, Ste 1450
Houston, Texas 77002
(713) 224-7644
Attorney for Michael Brown in No. 2006-66579 divorce matter.
Festari, Debbi
1800 Post Oak Blvd
Houston, Texas
Wife of Rudy Festari. Listed as person with relevant knowledge by Michael Brown in
divorce matter.
Festari, Rudy
1800 Post Oak Blvd
Houston, Texas
Owner of Festari for Men.
Fink, M.D., Aaron H.
4550 Post Oak Place, Suite 320
Houston, Texas 77027
(713) 622-5480
Psychiatrist
Flores, Marlene
Current contact information unknown
Prior nanny to the children of R. Brown and Michael Brown.
Fowler, Dodie
CmTent contact information unknown
Former business manager and office manager of Brown Medical Center.
Franklin, Sarah
Current contact information unknown
Current or former employee of Marshall Davis Brown, Jr. who worked on R. Brown fle
34
Geiger, Jeff
1001 Brickell Bay Dr, Ste. 2600
Miami, Florida
Employee of Promed and/or other entities owned and/or controlled by Michael Brown
Glass, M.D., P.A., George
4600 Post Oak Place Drive, Suite 307
Houston, Texas 77027
(713) 666-9811
Psychiatrist who evaluated and/or treated Michael Brown.
Grimmer, Nicholas G.
Greenberg Traurig LLP
1000 Louisiana St., Ste 1700
Houston, Texas 77002
(713) 374-3505
Attorney for Brown Medical Center, Inc.
Custodian of Records for George Glass, M.D., P.A.
4600 Post Oak Place Drive, Suite 307
Houston, Texas 77027
(713) 666-9811
Grange, David L.
Osprey Global Soultions, LLC
Current contact information unknown
Former Chief Restructuring Officer, Brown Entities.
Griggs, Chris
4098 County Road 145
Alvin, Texas 77511
(281) 468-6248
Former pilot for aircraft owned and/or controlled by Michael Brown or entity owned and/or
controlled by Michael Brown.
Gonzales, Ruth
1001 Brickell Bay Dr, Ste. 2600
Miami, Florida
Employee of Promed and/or other entities owned and/or controlled by Michael Brown.
Grimes, Richard M.
Grimes & Fertitta P.C.
400 Louisiana, Ste 1450
Houston, Texas 77002
(713) 224-7644
Attorney for Michael Brown in No. 2006-66579 divorce matter.
35
Guffy, Elizabeth M.
Current contact information unknown.
Bankruptcy Trustee for Brown Medical Center, Inc.
Guyot, Manuel ("Manny")
35 Islewood Blvd
The Woodlands, Texas 77380
Prior president of Brown Medical Center, Inc. and other businesses which Michael Brown
claimed an ownership interest in.
Hadjab, Amel
Current contact information unknown
Nanny for children of R. Brown and Michael Brown.
Hantman, Robert J.
Hantman & Associates
1515 Broadway, 11th Floor
New York, NY 10036
(212) 684-3033
F01mer attorney of Michael Glyn Brown in divorce and bankruptcy matters
Harkey, Rhonda Butler
Orgain Bell & Tucker
470 Orleans, 4th Floor
Beaumont, Texas 77701
(409) 838-6412
Attorney for CommunityBank of Texas, N.A. (Vista Bank of Texas).
Hassell, Jonathan A.
Jedediah D. Moffett, PC
801 Congress, Ste 400
Houston, Texas 77002
(713) 333-5800
Employee of Jedediah D. Moffett
Hearne, PhD, Cindy
1 720 Sunset Blvd
Houston, Texas 77005
(713) 520-1243
Therapist for Michael and Rachel Brown
36
Hilder, Philip
Hilder & Associates
819 Lovett Blvd.
Houston, TX 77006
(713) 655-9111
Attorney for Michael Brown who brought motion for sanctions against M.D. Brown for
his behavior in Brown divorce. Attorney for Brown Medical Center, Inc., Superior Vehicle
Leasing Co., Inc., Texas Hand Therapy Center, Inc.
Hill, FASA, James M. "Mike"
HSSK
5847 San Felipe, Ste 3100
Houston, Texas 77057
(713) 771-5011
Expert witness (business valuation) hired by Michael Brown in divorce matter.
Hill, Jr., ASA, CPA/ABV, J. Michael
HSSK
5847 San Felipe, Ste 3100
Houston, Texas 77057
(713) 771-5011
Expe11 witness (business valuation) hired by Michael Brown in divorce matter.
Hilshey, Julie
Cun-ent contact information unknown
Current or former employee of Marshall Davis Brown, Jr. who worked on R. Brown file
Holzmann, Malcom
Aircheck News Taping
2201 West Davis
Conroe, Texas 77304
(210) 342-5900
Prepared footage tape from KPRC-TV2 broadcast on 1/12/12.
Hopkins, Craig
Current contact information unknown
Employed at the direction of David L. Grange, CRO for the Brown Entities.
Houston Auto Appraises
18 Quailwood Drive
Baytown, Texas 77521
Expert witness (motor vehicle appraisal) appointed by Court in R. Brown and Michael
Brown divorce matter.
37
Custodian of 911 Records, Houston Police Department,
5320 North Shepherd, Room 1022
Houston, Texas 77091
Possession of routine records maintained by the Houston Police Department.
Custodian of Records, Houston Police Department,
1200 Travis Street
Houston, Texas 77002
Possession of routine records maintained by the Houston Police Department.
Howard, Roger
Roger Howard Appraisers
4800 West 34th Street #B9
Houston, Texas 77092
(713) 869-5561
Expert witness (personal property appraiser) appointed by Court in R. Brown and Michael
Brown divorce matter.
Howland, David
10419 Mossy Brook Lane
Cypress, Texas 77433
Listed as person with relevant knowledge by Michael Brown in divorce matter.
Hurst, MBA, ASA, Elizabeth "Beth" H.
William B. Stewart Jr., CPA
7887 San Felipe St., Ste 122
Houston, TX 77063
(713) 974-2928
Characterization and valuation expert engaged by M.D. Brown on behalf of R. Brown.
Hutchings, Lisa M.
Current contact information unknown
Current or former employee of William B. Stewart, Jr. CPA who worked on R. Brown file
Indelicato, Joseph
Current contact information unknown
Master in Chancery in No. 2011-01272, in the 3091h District Court of Harris County, Texas.
Isbell, Kelley
Current address unknown.
CC'd on emails regarding No. 2011-01272 divorce.
Inge!, Denise
Current contact information unknown
Financial staff member of Brown Medical Center, Inc. and/or other entities owned and/or
controlled by Michael Brown.
38
Ingram, Harry W.
Aeromax, USA
1406 E. Main Street
Fredericksbmg, Texas 78624
(830) 466- I 064
Designated expert (aircraft appraiser) by M.D. Brown for R. Brown in divorce action.
Jackson, Stephen
Current contact information unknown.
CC'd on letter from DeBruin re No. 2011-01272 divorce.
Jaeger, Chris
1001 Brickell Bay Dr, Ste. 2600
Miami, Florida
Employee of Premed and/or other entities owned and/or controlled by Michael Brown.
Johansen, Lawrence
I 001 Brickell Bay Dr, Ste. 2600
Miami, Florida
Employee of Premed and/or other entities owned and/or controlled by Michael Brown.
Jones, ASA, CBI, Jeffery D.
Cettified Appraisers, Inc.
5500 Katy Freeway
Houston, Texas 77007
(713) 680-3290
Expert witness (real estate) engaged by Michael Brown in divorce matter.
Knapp, Russell
Certified Appraisers, Inc.
5500 Katy Freeway
Houston, Texas 77007
(713) 680-3290
Expert witness (real estate) engaged by Michael Brown in divorce matter.
Kuehm, Robert C.
Kuehm, Robert I.
8441 Gulf Freeway, Ste 600
Houston, Texas 77017
(713) 861-6166
Attorneys for Michael Brown who brought motion for sanctions against M.D. Brown for
his behavior in Brown divorce.
39
Leahy, James R.
Locke Lord, LLP
600 Travis, Ste 2800
Houston, Texas 77002
(713) 226-1200
Attorney for Greenberg Traurig in No. 14-0306.
Learned, NAMS CMS, ASA, Richard F.
Learned Associates, Inc.
702 NW Sunset Drive
Stuart, Florida 34994
(772) 692-7740
Designated expert (yacht appraiser) by M.D. Brown for R. Brown in the divorce action.
Lemkuil, Daniel J.
Current contact information unknown.
Received notices from court in No. 2011-01272 divorce.
Levantino, Patrick M.
Levantino & Company
2201 West Davis
Conroe� Texas 77304-2065
(936) 441-6212
Prepared tax returns for R. Brown, Michael Brown, and entities owned and/or controlled
by Michael Brown. Designated as an expert witness by Michael Brown in divorce matter.
Levy, Steven
Levantino & Company
2201 West Davis
Conroe, Texas 77304-2065
(936) 441-6212
Prepared tax returns for R. Brown, Michael Brown, and entities owned and/or controlled
by Michael Brown.
Lopez, M.D., Randolph A.
Current contact information unknown
Business partner co-owner of business entity or entities in which Michael Brown claimed
an interest.
Lopez, Tabbetha
12818 Everhart Point Dr
Tomball, Texas 77377
Wife of Randolph Lopez, M.D.
40
Loredo, III, M.D., Pedro
1605 Airport Freeway
Bedford, Texas 76021
(800) 214-4263
Business partner- co-owner ofbusiness entity or entities in which Michael Brown claimed
an interest.
Lovett, Mary Olga
Greenberg Traurig
1000 Louisiana St, Ste 1700
Houston, TX 77002
(713) 374-3500
Attorney allegedly subject to sexist and demeaning remarks from M.D. Brown. Attorney
for Brown Medical Center, Inc.
Luke, Daniel
Current contact information unknown
Former chef at 9110 Memorial Drive residence.
Luna, Maria
Current contact information unknown
Nanny for children ofR. Brown and Michael Brown.
Lunger, Larry
12818 Highway 105 West, Suite 2-G
Conroe, Texas 77304
(888) 281-1618
Owner-President of Global Security Agency, Inc.
MacTavish, Bridget
c/o David Jaroslawicz
Jaroslawicz & Jaros, LLC
225 Broadway, 241h Floor
New York, New York 10007
(212) 227-2780
Former girlfriend of Michael Brown.
Malisow, Craig
Houston Press
Current contact information unknown
Written a series of articles regarding Michael Brown, R. Brown, and the various attorneys
representing them.
41
Malone, Darry1 W.
5020 Montrose Blvd., Ste 400
Houston, Texas 77006
Attorney for third party respondents, Superior Vehicle Leasing Co., Inc., Brown Medical
Center, Inc., Texas Hand Therapy Center, Inc., Castlemane, Inc., Lionheart Company, Inc.,
MG Brown International, LLC, MG Brown Investment Group, LLC, Prorentals, Inc.,
BHCF, LLC, involved in No. 2011-01272 divorce.
Martinez, Mary Alice
3355 W Alabama, Ste 950
Houston, Texas 77098
(713) 952-1115
Legal assistant to Joseph Indelicato, Jr.
McCullar, Charlene
23011 Canyon Lake
Spring, Texas 77373
(832) 326-4742
Financial staff member of Brown Medical Center, Inc. and/or other entities owned and/or
controlled by Michael Brown.
McDowell, Jeanne C.
Law Offices of Jeanne Caldwell McDowell
Current contact information unknown
Attorney involved No. 2011-01272, Brown divorce matter
McGuire, Stephanie
819 Lovett Blvd
Houston, Texas 77006
(713) 655-9111
Attorney for Brown Medical Center, Inc., Superior Vehicle Leasing Co., Inc., Texas Hand
Therapy Center, Inc.
McKay, Lisa
Current contact information unknown
Financial staff member of Brown Medical Center, Inc. and/or other entities owned and/or
controlled by Michael Brown.
McKinney, Christopher A.
Orgain Bell & Tucker
470 Orleans, 4th Floor
Beaumont, Texas 77701
(409) 838-6412
Attorney for CommunityBank of Texas, N.A. (Vista Bank of Texas).
42
Mendoza, Anna
Current contact information unknown.
Paralegal to Claudia Canales.
Mercer, Sandy S.
Mercer Law
3319 Marian Lane
Rosenberg, Texas 77471
(713) 866-4804
Former attorney for Michael Glen Brown in Case No. 2011-01272 in 3091h Judicial District
Court, Harris County, Texas; and, in Barone modification suit, Case No. 2006-25428 in
247111 Judicial District Court of Harris County, Texas
Mitchell, Miryam
Current contact information unknown
Current or former employee of Robert Hoffman who worked on R. Brown file
Moffett, Brittney
Current contact information unknown
Current or former employee of Jedediah D. Moffett who worked on R. Brown file
Moritz, John
710 N. Post Oak Blvd. #200
Houston, Texas 77024
President and Director of Moritz & Associates.
Morris, Michele
Brittex Appraisal Services, Inc.
8603 S. Dixie Hwy., #305
Miami, Florida 33143
(305) 663-7334
Designated expert (real estate appraiser) by M.D. Brown for R. Brown in the divorce
action.
Mozeleski, Robert
12818 Highway 105 West, Suite 2-G
Conroe, Texas 77304
(888) 281-1618
Employee of Global Security Agency, Inc.
Mrowec, Magdalena
1001 Brickell Bay Dr, Ste. 2600
Miami, Florida
Employee of Promed and/or other entities owned and/or controlled by Michael Brown.
43
Munroe, Dallas
Thunderbird Airway, Inc.
Enterprise Jet Center
8620 West Moroe
Houston, Texas 77062
(713) 649-1919
Owner of Thunderbird Airways.
Murphy, Kelly
The Coole Company
1630 South Gessner Road
Houston, Texas 77063
(832) 358-2800
Designated expert (real estate appraiser) by M.D. Brown for R. Brown in the divorce
action.
Nahmias, M.D., Larry
Krist Samaritan Center
17555 El Camino Real
Houston, Texas 77058
(281) 480-7554
Psychiatrist who evaluated and/or treated Michael Brown.
Custodian of Records for Larry Nahmias, M.D.
Krist Samaritan Center
17555 El Camino Real
Houston, Texas 77058
(281) 480-7554
Nichols, Sr., John F.
Nichols Law, PLLC
5020 Montrose Blvd, Suite 400
Houston, Texas 77006
Attorney involved in No. 2011-01272 divorce.
Nix, Donna
Current contact information unknown
Employee of Brown Medical Center, Inc. and/or other entities owned and/or controlled by
Michael Brown.
Ortiz, George
Current contact information unknown
Groundskeeper ranch hand.
44
Pardue, LPC, BCPCC, Kathy
Karis Counseling, LLC
9525 Katy Freeway, Suite 126
Houston, Texas 77024
(713) 501-0663
Maniage counselor.
Paterson, Johnie
Walker & Patterson, P.C.
4815 Dacoma Street
Houston, Texas 77092
(713) 956-5577
Former attorney ofRachel Brown.
Payne, Brian
Reynolds Protect, LLC
8035 ERL Thorton Fwy, Ste 235
Dallas, Texas75228
(214) 614-8181
Listed as person with relevant knowledge by Michael Brown in divorce matter.
Payne, Stephen
c/o Gary M. Polland
Polland & Associates
2211 Norfolk St, Ste 920
Houston, Texas 77098
(713) 621-6335
Business partner - co-owner of business entity or entities in which Michael Brown claimed
an interest.
Perez, Annelore
Current contact information unknown
Employee of Promed and/or other entities owned and/or controlled by Michael Brown.
Peterson, Stacy
Current contact information unknown
Current or former employee ofRobert Hoffman who worked on R. Brown file
Pham, Alice
Current contact information unknown
Financial staff member of Brown Medical Center, Inc. and/or other entities owned and/or
controlled by Michael Brown.
45
Powers, Aaron
Current contact information unknown.
(713) 226-6000
Attorney for Elizabeth M. Guffy, Bankruptcy Trustee for Brown Medical Center, Inc.
Quijano, PhD, Walter
901 N. Thompson Street
Conroe, Texas 77301
(936) 539-2226
Psychiatrist who evaluated and/or treated Michael Brown.
Ready, Lauren
9110 Memorial Drive
Houston, Texas 77024
Daughter ofR. Brown.
Ready, Shannon
5710 Hoover Street
Houston, Texas77092
Listed as person with relevant knowledge by Michael Brown in divorce matter.
Reger, Gary Neale
Orgain Bell & Tucker
470 Orleans, 4th Floor
Beaumont, Texas 77701
(409) 838-6412
Attorney for Vista Bank of Texas in No. 14-0306.
Reynolds, Chad
Reynolds Protection, LLC
8035 ERL Thorton Frwy, Ste 235
Dallas, Texas 75228
(214) 614-8181
Listed as person with relevant knowledge by Michael Brown in divorce matter.
Rivera, Abel
Reynolds Protection, LLC
8035 ERL Thorton Frwy, Ste 235
Dallas, Texas 75228
(214) 614-8181
Listed as person with relevant knowledge by Michael Brown in divorce matter.
Robins, Sharon Henderson
1717 McKinney Ave, Ste. 1500
Dallas, Texas 75202 (214) 871-2727
Legal assistant to Michael R DeBruin.
46
Rosen, Britt J.
Brittex Appraisal Services, 111c.
8603 S. Dixie Hwy., #305
Miami, Florida 33143
(305) 663-7334
Designated expert (rea1 estate appraiser ) by M.D. Brown for R. Brown in the divorce
action.
Rutherford, Rock
12818 Highway 105 West, Suite 2-G
Conroe, Texas 77304
(888) 281-1618
Employee of Global Security Agency, Inc.
Ryan, Paul
Current contact information unknown
Former employee of Michael Brown.
Salas, Rose
1001 Brickell Bay Dr, Ste. 2600
Miami, Florida
Employee of Premed and/or other entities owned and/or controlled by Michael Brown;
became executive assistant to D. Grange as part of restructuring team.
Sanders, Kyle
Looper Reed & McGraw
1300 Post Oak Blvd, Ste 2000
Houston, Texas 77056
(713) 986-7000
Santos, M.D., George
5151 San Felipe Street, Suite 1470
Houston, Texas 77056
(713) 622-4499
Psychiatrist who evaluated and/or treated Michael Brown.
Saucedo, Rolando
4706 Nina Lee
Houston, Texas 77092
Former employee - agent of Michael Brown.
Scardino, Katherine
3730 Kirby Drive, Suite 1120
Houston, Texas 77098
Former attorney of Michael Brown.
47
Schmermahorn, Clinton
2637 East Atlantic Blvd, No 17684
Pompano Beach, Florida 33062
(303) 335-3611
Designated expert (auto appraiser) by M.D. Brown for R. Brown in the divorce action.
Schouten, Walter
Current contact information unknown
Law clerk to M.D. Brown, who worked on various issues for R. Brown.
Simione, Dr. Peter
5850 San Felipe, Suite 500
Houston, Texas 77057
(713) 706-6131
Psychiatrist who evaluated and/or treated Michael Brown.
Sims, Michael
CwTent contact information unknown
Former employee of Global Security Agency, Inc.
Smoot, Steven M.
1301 McKinney, Ste 2900
Houston, Texas 77010
(713) 654-0708
Attorney for Michael Brown in No. 2006-66579 divorce matter.
Sperber, Pamela Ferguson
Greenberg Traurig
1000 Louisiana, Ste 1700
Houston, Texas
(713) 374-3554
Attorney in No. 2011-01272 for BHCF, LLC.
Spillker, CPA, ABV, Jeffrey W.
HSSK
5847 San Felipe, Ste
3100
Houston, Texas 77057
(713) 771-5011
Expert witness (business valuation) hired by Michael Brown in divorce matter.
48
Stewart, Jr., William B.
Stewart McLean Consultants, LLC
7887 San Felipe St., Ste 122
Houston, TX 77063
(713) 974-2928
Accountant designated as expert witness in many of the Brown matters.
Summers, Ronald
c/o Richard A. Kincheloe,
Nathan Sommers Jacobs, PC
2800 Post 6l51 Floor
Oak Blvd,
Houston, TX 77056
(713) 892-4809
Chapter 7 Bankrnptcy Trustee in In re Brown.
Storey, JoAnn
1005 Heights Blvd.,
Houston, TX 77008.
(713) 529-0048.
Hired by M.D. Brown to be of counsel in GSA v. R. Brown matter.
Tate, Mark
Tate Law Group, L.L.C.
2 E. 600
Bryan Street, Suite
Savannah, Georgia, 31401
(912) 234-3030
Former attorney for Michael Brown.
Tetrauld, Richard
Brubaker & Associates
7626 Hammerly Blvd.
Houston, Texas 77055
(713) 464-4666
Designated expert (real estate appraiser) by M.D. Brown for R. Brown in the divorce
action.
Custodian of Records for Texian Management Assoc., Inc.
4550 Post Oak Place, Suite 320
Houston, Texas 77027
(713) 622-5480
Possession of routine records maintained by Texian Management Assoc., Inc., Aaron H.
Fink M.D., and Milton Atlschuler, M.D.
49
Thornton, III, Donald
Current contact information unknown
Former house manager at 91 I 0 Memorial Drive residence.
Tilbrook, Geraldina-Marie
Current contact information unknown
Potential replacement to Guardians of Hope
Todd, Matt
Cun-ent contact information unknown
Toledo, Elkin
Current contact information unknown
Former driver - porter at 9110 Memorial Drive residence
Towber, Preston T.
Towber Law Firm, PLLC
6750 West Loop South, Suite 920
Bellaire, Texas 77401
(832) 485-3555
Attorney for Defendants in bankruptcy action
Trejo, Paul
12818 Highway 105 West, Suite 2-G
Conroe, Texas 77304
(888) 281-1618
Employee of Global Security Agency, Inc.
Varga, Glenda
Current contact information unknown.
Nanny for children ofR. Brown and Michael Brown.
Van Chamier, Celine
Current contact information unknown.
Former housekeeper at 9110 Memorial Drive residence.
Van Ness, Kristin
Cun-ent contact information unknown.
CC' d on emails regarding No. 2011-01272 divorce.
Velez, Claudia
8802 Clearboume Lane
Houston, Texas
Nanny for children ofR. Brown and Michael Brown.
50
Verducci, Christopher Andrew
Locke Lord, LLP
600 Travis, Ste2800
Houston, Texas77002
(713) 226-1200
Attorney for Greenberg Traurig in No. 14-0306 .
Verducci, Diana
Current contact information unknown
Financial staff member of Brown Medical Center, Inc. and/or other entities owned and/or
controlled by Michael Brown.
Viktorin, Larry B.
1020 County Rd. 129
\Vharton, Texas77488
Business partner co- owner of business entity or entities in which Michael Brown claimed
an interest.
Von Proctor, Ray
Current contact information unknown
Former personal assistant to Michael Brown.
Warshawsky, Kimberly A.
Greenberg Traurig, LLP
2375 E Carnelback Road, Ste700
Phoenix, Arizona85016
(602)445-8000
Attorney for Brown Medical Center, lnc.
Waters, Jane
Assistant Harris County District Attorney
1201 Franklin Street, Suite 600
Houston, Texas77002
Harris County District Attorney involved in criminal prosecution of Michael Brown.
Weslar, Daniel
Current contact information unknown
Former personal assistant to Michael Brown.
\Vilcockson, Norma
Guardians of Hope
2211 Rayford Rd., Suite111 #22
Spring, Texas 77386
(713) 542-1110
Founder and director of Guardians of Hope
51
Wimberly, Hether
8414 Windell Lane
Houston, Texas 77040
Listed as person with relevant knowledge by Michael Brown in divorce matter.
Wright, MD, Robbie
4550 Post Oak Place, Suite 320
Houston, Texas 77027
(713) 622-5480
Designated witness by Michael Brown in divorce matter for his treatment of R. Brown.
Ybanez, Timothy "Tim"
Current contact information unknown
Former chauffeur at 9110 Memorial Drive residence.
York, Douglas Ray
Pavlas, Brown & York, L.L.P.
3040 Post Oak Blvd., Ste 1020
Houston, Texas 77056
Attorney for R. Brown in No. 2006-66579 divorce matter. Business pa1iner of M.D.
Brown.
We hereby adopt and incorporate all names of any witnesses, their addresses and telephone
numbers and/or any other person with knowledge designated by any other party to this lawsuit as
if set forth specifically herein. Plaintiff will supplement pursuant to the Texas Rules of Civil
Procedure.
6. For any expert testifying on your behalf in this case:
(a) The expert's name, address, and telephone number;
(b) The subject matter on which the expert will testify;
(c) The general substance of the expert's mental impressions and opinions and a brief
summary of the basis for them, or if the expert is not retained by, employed by, or
otherwise subject to your control, documents reflecting such infonnation.
(d) If the expert is retained by, employed by, or otherwise subject to your control;
I) all documents, tangible things, reports, models, or data compilations that
have been provided to, reviewed by, or prepared by or for the expert in
anticipation of the expert's testimony; and
2) the expert's current resume and bibliography.
RESPONSE:
No experts have currently been designated. Plaintiff will supplement pursuant to the Texas
Rules of Civil Procedure.
52
Plaintiff may, or may not, introduce opinions given by Defendants in their correspondence,
depositions, or discovery, in this case. Such persons are not subject to Plaintiff's control. Plaintiff
would refer to all correspondence, emails, letters, billings, statements made in court, and discovery
responses, and depositions in this case, or previous cases, with respect to these "opinions."
7. Any discoverable indemnity and insuring agreements.
RESPONSE:
None
8. Any discoverable settlement agreements.
RESPONSE:
None
9. Any discoverable witness statements.
RESPONSE:
None
10. If you are alleging physical or mental injury and damages from the occurrence that is the
subject of the case, all medical records and bills that are reasonably related to the injuries
or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such
medical records and bills.
RESPONSE:
The underlying event of divorce, care of Rachel's children, and the stress of the economic
losses, has been tremendously stressful to Rachel. It has created a perpetual state of stress, tension,
worry and fear. The actions of the Defendants only aggravated, exacerbated, and heightened this
process. The Defendants engaged in conduct whereby they intentionally obtained press coverage
upon such matter, and delayed such matter, and made misrepresentations to the Plaintiff about the
process and advised the Plaintiff not to engage in settlement negotiations, and told the Plaintiff
53
that bankruptcy would be excellent for her legal rights. All of such actions merely caused her to
suffer severe emotional and mental distress.
The Defendants, even though they were fiduciaries to Plaintiff, were completely indifferent
to Plaintiffs plight and, other than running up their own legal fees, did little, if nothing, to try to
lessen or relieve such matters.
To the extent that there are medical bills regarding this, we will supplement regarding
same.
11. If you are alleging physical or mental injury and damages from the occurrence that is the
subject of the case, all medical records and bills obtained by you by virtue of an
authorization furnished by the plaintiff
RESPONSE:
Please see answer to # l 0 above.
54
Tab 4
Brown’s Request for Production No. 52
CAUSE NO. 2014-17523
R.BROWN § IN THE DISTRICT COURT OF
§
vs. § HARRIS COUNTY, T EXA S
§
M.D.BROWN, JR., §
INDIVIDUALLY, ET AL § 61'1 JUDICIAL DISTRICT
PLAINTIFF'S SECOND REQUEST FOR PRODUCTION TO DEFENDANTS
TO: Defendants, MoD. Brown, Jr., Individually, Pavlas & Brown, L.L.P., and Pavlas, Brown
& York, L.L.P., by and through their attorney of record, Jedediah D. Moffett, Jedediah D.
Moffett, P.C., 801 Congress, Suite 400, Houston, Texas 77002'
Jedediah D. Moffett, Individually, and Jedediah D. Moffett, P.C., by and through their
attorney of record, Marshall Davis Brown, Pavlas & Brown, L.L.P., 3040 Post Oak
Boulevard, Suite 120, Houston, Texas 77056
Robert S. Hoffman, Individually, and Law Office of Robert S. Hoffman, P. L.L.C., by
and through their attorney of record, Tom Alan Cunningham, Debbie C. Darlow, 919
Milam, Suite 575, Houston, Texas 77002.
Pursuant to Rule 196 of the Texas Rules of Civil Procedure, Defendants are requested to
produce to Plaintiff for inspection and copying the documents in their possession, custody, or
control which are listed in Exhibit "A" attached hereto and incorporated herein by reference.
Defendants are requested to produce such documents at the offices of Williamson & Rusnak, 4310
Yoakum Boulevard, Houston, Texas, 77006 not later than thirty (30) days after service of this
Request. Defendants are also reminded of their obligation to supplement their responses to these
requests pursuant to the Texas Rules of Civil Procedure.
Page 1 of6
Respectfully submitted,
WILLIAMSON & RUSNAK
IS/ Jimmy Williamson
JIMMY WILLIAMSON
jimmy@jimmywilliamson.com
State Bar No. 21624100
CYNDI M. RUSNAK
cyndi@jimmywilliamson.com
State Bar No. 24007964
4310 Yoakum Boulevard
Houston, Texas 77006
Telephone: (713) 223-3330
Facsimile: (713) 223-0001
ROSS A. SEARS, II, P.C.
By: Isl Ross A. Sears. II
Ross A. Sears, II
State Bar No. 17960011
4310 Yoakum Blvd.
Houston, Texas 77006
Telephone (713) 223-3333
Facsimile (713) 223-3331
ATTORNEYS FOR PLAINTIFF
Page 2 of6
CERTIFICATE OF SERVICE
I hereby certify that on September 8, 2014, I forwarded a copy of this instrument to all
counsel of record by either email, facsimile, certified mail, return receipt requested and/or hand
delivery to:
Defendant, M.D. Brown, Jr., Individnally Defendant, Pavlas & Brown, L.L.P.
by and through his attorney of record, by and through its attorney of record,
Jedediah D. Moffett Jedediah D. Moffett
Jedediah D. Moffett, P.C. Jedediah D. Moffett, P.C.
801 Congress, Suite 400 801 Congress, Suite 400
Houston, Texas 77002 Houston, Texas 77002
Defendant, Pavlas, Brown & York, L.L.P Defendant, Jedediah D. Moffett, P.C.
by and through its attorney of record, by and through its attorney of record,
Jedediah D. Moffett Marshall Davis Brown, Jr.
Jedediah D. Moffett, P.C. Pavlas & Brown, L.L.P.
80 I Congress, Suite 400 3040 Post Oak Boulevard, Suite 120
Houston, Texas 77002 Houston, Texas 77056
Defendant, Jedediah D. Moffett Defendants, Robert S. Hoffman,
by and through his attorney of record, Individually
Marshall Davis Brown, Jr. and Law Office of Robert S. Hoffman, P.
Pavlas & Brown, L.L.P. L.L.C.
3040 Post Oak Boulevard, Suite 120 by and through their attorney of record,
Houston, Texas 77056 Tom Alan Cunningham
Debbie C. Darlow
919 Milam, Suite 575
Houston, Texas 77002
Isl Ross A. Sears, II
Ross A. Sears, II
Page 3 of6
EXHIBIT "A"
DEFINITIONS AND INSTRUCTION
1. None of the definitions, instructions or document requests set forth herein are
intended to impose, nor should they be interpreted as imposing, any duty not required by the Texas
Rules of Civil Procedure. Any objections should therefore state specifically how the objecting
party contends such definition, instruction or document request does not comply with the Rules.
2. Any non-defined term or phrase should be read as having its ordinary, common-
sense, English language meaning.
3. To the extent doing so would not contradict the Texas Rules of Civil Procedure, the
document requests that follows hereto shall be read liberally, so as to be inclusive rather than
exclusive.
4. "Document' or "documents" is used in its broadest sense and includes all written,
reported, recorded, pictorial, or graphic matter, however produced or reproduced, now or at any
time in your possession, custody or control, including, but not limited to, all letters, telegrams,
telecopies, facsimiles, telexes, cables, telephone records and notations, invoices, ledgers, journals,
e-mail, computer disks (hard or soft), magnetic media, electronic memory and other fonnal and
informal books of record and accountings, minutes, bulletins, instructions, financial statements,
photographs, reports, memoranda, notes, notebooks, drafts, worksheets, contracts, agreements,
contract briefs, contract summaries, computer data, tape recordings, transcriptions, intra-company
drafts of the foregoing items, and copies or reproductions of the foregoing upon which notations
in writing have been made which do not appear on the originals.
5. "Communication" or "Communications" means any document(s) that comprise,
reflect, record, memorialize, embody, discuss, evaluate, consider, review, report on the subject
matter of the request, or were reviewed in conjunction with, or were created, generated, or
maintained as a result of the subject matter of the request.
6. "You" or "your" means the defendant or defendants responding to these requests.
7. If any document responsive to these requests is withheld under a claim of privilege
or upon any other ground, as to each such document, identify the privilege being asserted and
provide the following information in sufficient detail to pennit the court to rule on your claim:
a. the date, author, primary addressee and secondary addressee or persons
copied, and the relationship of those persons to the client and/or author of
the document;
b. a brief description sufficient to identify the type, subject matter, and purpose
of the document;
Page 4 of6
c. all persons to whom its contents have been disclosed; and
d. the party who is asserting the privilege.
8. You are obligated to produce any and all documents which may be in your care,
custody or control, or which are in the possession of your agents, subsidiaries, affiliates,
employees, accountants, investigators, attorneys, or any other representatives who are subject to
your control or direction, wherever located.
9. Each request for production of documents herein shall be deemed continuing so as
to require prompt supplemental responses, in accordance with Tex. R. Civ. P. 193.5, if you obtain
or discover further documents called for herein between the time of responding to this request and
the time of trial.
10. No Document or File requested should be altered, changed, or modified in any
respect. No Document or File requested should be disposed of or destroyed.
11. "Refer," "relate," "referring," or "relating" intends to encompass all documents
that comprise, reflect, record, memorialize, embody, discuss, evaluate, consider, review, report on
the subject matter of the request, or were reviewed in conjunction with, or were created, generated,
or maintained as a result of the subject matter of the request.
12. The "Plaintiff'' means RACHEL BROWN.
13. The "Defendant and/or Defendants" means M. D. BROWN, JR.,
INDIVIDUALLY, also referred to as "D. BROWN", PAVLAS BROWN & YORK, L.L.P.,
PAVLAS & BROWN, L.L.P., JEDEDIAH D. MOFFET, INDIVIDUALLY, JEDEDIAH D.
MOFFET, P.C., ROBERT S. HOFFMAN, INDIVIDUALLY, and/or LAW OFFICE OF
ROBERT S. HOFFMAN, P.L.L.C.
Page 5 of6
PLAINTIFF'S SECOND REQUEST FOR PRODUCTION TO DEFENDANTS
REQUEST NO. 52:
Please produce a copy of all documents showing the net worth of Defendants, individually
and Defendants' law firms.
RESPONSE:
Page 6 of6
Tab 5
Hoffman’s Response to Request for Production No. 52
To: Page 4 of 7 2014·10·0510:27:27 CDT 17132555555 From: Tom Cunningham
No. 201417523
R. BROWN § IN THE DISTRICI' COUR Y OF
§
§ l-L\RRIS COUNTY, TEXAS
§
iVLD. BRO\VN, .JR., §
INDlVIDlU\LLY, ET AL § 61.i ,JlJDICL\LDISTRK'l'
HOFFMAN'S RESPONSE TO
PLAINTIFF"S SECOND RJ�QUEST FOR PRODUCTIOl1ff(])JU/ENDANTS
TO: l'laintift: Rachel Brown, by and through her attomeys of record, Jimmy WiUiamsor�
andRo:-.sA Scars, II, 4310Yoakum Blvd., Houston, Texas 77006
Pursuant to the Texas Rules of Civil Procedure, DefendantsRobert S, Hoftinan,
Individually, a nd the Law Ollioc of Robert S. Hoilinan, P.L.L.C., serve upon Pla intin; the
attached Response to Plaintiffs Second Request for Production to J)efondants.
Respectful lysubmittcd,
CUNNINGHAMDAHLOWLLP
By: /si'fom Cunnilm.ham
TornCunninglmm
StatcBurNo.05244700
DcbbicC.Darlow
StatcBarNo.05186900
919Mifom, Suite 575
Houston, J c.xas770 02
' '
Tcicphono: 713-255-5500
Teleoopier:713·255·5555
ATTORNEYSFORDEFENDANTS,
ROBERTS. HOFFMAN AND
LAW OFFICE OF ROBERTS. HOFFMAN,
P.L.L.C.
Plaintiff's Exhibit B
To: Page 5 of 7 2014-10-06 10:27:27 CDT 17132555555 From: Tom Cunningham
C�JIBTIFI<�ATIJ)FSEHYICJ�
The foregoin g instrument was served upon ! h e counsel. of record listed below by electronic
document transfor pursuant to Rule 2 la of the TEXAS RIJLESOFC!VlLPROCEDUREonOctobcr
8, 2014.
isl Tom Cunningham
Tom Cunningham
JimmyWillimnson
Cyndi M, Rus1mk
43 l OYoakmnBoulcvru-d
Houston,Tcxas77006
Te!ecopi er:713-223-000l
Ross A. Scars, II
Ross A. Scars, It P.C.
4310 Yoakum Boulevard
1-lotiston, Texas 77006
Telecop i e,. 713-7/3-3331
A'lTORNEYSFORPLAIN'llFF
Marshall DavisBro\\11,Jr.
Pavlas & Brown L.L. P.
3040 Post Onk Blvd., Sui tc 1020
Houston, Texas 77056
Telccopier: 713-961-1209
Jedediah D. Mollett
Je dediah D. Moffett, P.C.
80 l Congress, Suite 400
Houston. Texas 77002
Tdi::copicr: 713-333-5801
To: Page 6 of7 2014·10-0810:27:27 CDT 17132555555 From: Tom Cunningham
HOFF'MAN'S RESPONSE TO
PLAil'ITIJ.ll'S SECOND REQtrl<:ST l"ORPRODUCTIONTODEI879 S.W.2d 10, 29-30 (Tex. 1994). This does not mean, however, that discovery of net worth
should be postponed until after the first part of the trial. The First Court of Appeals has rejected a
trial court's attempt to delay the discovery of net worth data until after a finding of liability in a
bifurcated trial. Miller v. O'Neill, 775 S.W.2d 56 (Tex. App.-Houston [1'1 Dist.] 1989, orig.
proceeding). For the purposes of determining net worth for payment of exemplary damages, it is
reasonable to allow discovery of the documents in question.
WHEREFORE PREMISES CONSIDERED, Plaintiff respectfully requests that this Court
grant Plaintiffs Second Motion to Compel in its entirety and Order Defendants to produce
documents in response to Plaintiffs Request for Production No. 52, and for such other and further
relief to which Plaintiff may be justly entitled.
2
Respectfully submitted,
WILLIAMSON & RUSNAK
Isl Jimmy Williamson
JIMMY WILLIAMSON
jimmy@jimmywilliamson.com
State Bar No. 21624100
CYNDI M. RUSNAK
cyndi@jirnmywilliamson.com
State Bar No. 24007964
4310 Yoakum Boulevard
Houston, Texas 77006
Telephone: (713) 223-3330
Facsimile: (713) 223-0001
ROSS A. SEARS, II. P.C.
Ross A. Sears. II
Ross A. Sears, II
State Bar No. 17960011
4310 Yoakum Blvd.
Houston, Texas 77006
Telephone: (713) 223-3333
Facsimile: (713) 223-3331
ATTORNEYS FOR PLAINTIFF
3
CERTIFICATE OF SERVICE
I hereby certify that on August26, 2014 , I forwarded a copy of this instrument to all counsel
of record by either email, facsimile, certified mail, return receipt requested and/or hand delivery
to:
Defendant, M.D. Brown, Jr., Individually Defendant, Jedediah D. Moffett
by and through his attorney of record, by and through his attorney of record,
Jedediah D. Moffett Marshall Davis Brown, Jr.
Jedediah D. Moffett, P.C. Pavlas & Brown, L.L.P.
801 Congress, Suite 400 3040 Post Oak Boulevard, Suite 120
Houston, Texas 77002 Houston, Texas 77056
Defendant, Pavlas & Brown, L.L.P. Defendant, Jedediah D. Moffett, P.C.
by and through its attorney of record, by and through its attorney of record,
Jedediah D. Moffett Marshall Davis Brown, Jr.
Jedediah D. Moffett, P.C. Pavlas & Brown, L.L.P.
801 Congress, Suite400 3040 Post Oak Boulevard, Suite 120
Houston, Texas 77002 Houston, Texas 77056
Defendant, Pavlas, Brown & York, L.L.P Defendants, Robert S. Hoffman,
by and through its attorney of record, Individually
Jedediah D. Moffett and Law Office of Robert S. Hoffman, P.
Jedediah D. Moffett, P.C. L.L.C.
801 Congress, Suite 400 by and through their attorney of record,
Houston, Texas 77002 Tom Alan Cunningham
Debbie C. Darlow
919 Milam, Suite 575
Houston, Texas 77002
Isl Ross A. Sears, II
ROSS A. SEARS, II
4
Tab 7
Hoffman’s response to Brown’s motion to compel
11/13/2014 5:19:45 PM
Chris Daniel - District Clerk Harris County
Envelope No. 3174190
By: TERESA
KIRBY Filed: 11/13/2014
5:19:45 PM
NO. 2014-17523
R.BROWN, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § HARRIS COUNTY, TEXAS
§
M. D.BROWN, JR., ET AL. §
§
Defendants. § 61st JUDICIAL DISTRICT
HOFFMAN'S RESPONSE TO PLAINTIFF'S SECOND MOTION TO COMPEL
Robert Hoffman and Law Office of Robert S. Hoffman, P.L.L.C., ("Hoffman")
respectfully respond to Plaintiffs Second Motion to Compel as follows:
1. This is a legal malpractice case brought by Rachel Brown ("Plaintiff') against the
lawyers who represented her in her divorce proceedings against Dr. Michael Glyn Brown. The
divorce proceedings lasted three years, were extraordinarily protracted and contentious.
2. Plaintiffs Second Motion to Compel requests production of documents showing
the net worth of the defendants. Plaintiff claims to have pied for exemplary damages and therefore
claims that the net worth of the Defendants is relevant.
3. Hoffman reiterates the points and objections contained in his Response to
Plaintiffs Second Request for Production.
4. Plaintiffs Second Motion to Compel relies upon Lundsford v. Morris, 746 S.W.2d
471 (Tex. 1988) and Miller v. 0 'Neill, 775 S.W.2d 56 (Tex. App. - Houston [1'1 Dist.]
1989, orig. proceeding). Since those cases, however, the Texas Supreme Court decided
Transportation Ins. Co. v. Mariel, 879 S.W.2d 10, 29-30 (Tex. 1994) which provides for
bifurcation of a trial into two phases. In the first phase, the jury determines liability for
compensatory damages, the amount of compensatory damages, and liability for exemplary
damages. The amount of exemplary damages, the element with respect to which the Pla ntiff \
claims the Defendants' net worth is relevant, is not determined until a second phase ofthe trial in
which the jury hears evidence as to the amount ofthe exemplary damages, ifany, to be awarded.
See TEX. CIV. PRAC, & REM. CODE §41.009. Exemplary damages may only be awarded ifthe jury
finds unanimously by clear and convincing evidence that any harm suffered by the Plaintiff
resulted from the fraud, malice, or gross negligence of the Defendants. TEX. C1v. PRAC. & REM.
CODE.§41.003. The net worth of the Defendants is admissible only in the exemplary damages
phase ofthe trial. TEX. C!V. PRAC. & REM. CODE.§41.011.
5. In In re Jacobs, 300 S.W.3d 35 (Tex. App. - Houston [14'h Dist.] 2009, orig.
proceeding), the 14th Court of Appeals addressed discovery of net worth under the circumstances
that exist post Mariel. While the court recognized the rule announced in Lunsford, it nevertheless
required the trial court to carefully scrutinize such discovery to insure that the legitimate rights of
the defendants are not infringed upon concerning the scope and timing of net worth discovery.
Indeed, in an elaborate concurring opinion, Justice Sullivan traced the evolution of the law of
exemplary damages since Lunsford, including substantial legislative reforms severely limiting the
availability ofexemplary damages, and concluded that the Lunsford rule is out ofdate and should
be reexamined.
6. Hoffman respectfully asks this court, in the exercise of its discretion, to protect
against the premature disclosure of confidential and sensitive financial information of which the
Plaintiff has no legitimate need at this time. While the parties have exchanged document requests
and produced documents, no oral discovery has taken place and this case remains in its early stages.
There is no legitimate purpose to require disclosure ofthe Defendants net worth at this time except
for purposes of harassment. Indeed, it is clear that to the extent net worth evidence is relevant at
all, it is only the current net worth at the time oftrial, whlch, ofcourse, is not available at tills time.
Hoffman respect fully asks the Court to deny the Plaintiff's motion to compel disclosure of
Hoffinan' net worth at least until after the jury makes the required predicate finding ofliability for
exemplary damages.
7. In the alternative, Hoffman asks the court to require that financial and other
sensitive information be protected by a confidentiality order to be agreed upon by the parties, or
otherwise ordered by the court, and that the Court carefully limit the scope of the information to
be disclosed in the interests ofjustice.
For the foregoing reasons, Hoffinan respectfully requests that the Plaintiffs Second Motion
to Compel be denied and that Hoffman have such other and further relief to which he may show
himselfjustly entitled.
Respectfully submitted,
CUNNINGHAM DARLOW LLP
dflU, � ��1>1A
1 STATE OF TEXAS
2 COUNTY OF HARRIS
3
4 I, Jessica Chang, Official Court Reporter in and for
5 the 61st District Court of Harris, State of Texas, do
6 hereby certify that the above and foregoing contains a
7 true and correct transcription of all portions of
8 evidence and other proceedings requested in writing by
9 counsel for the parties to be included in this volume of/
' '
10 the Reporter's Record in the above-styled and numbered
11 cause, all of which occurred in open court or in
12 chambers and were reported by me.
13 I further certify that this Reporter's Record of the
14 proceedings truly and correctly reflects the exhibits,
15 if any, offered by the respective parties.
16
17
18
19
20
ls/Jessica Chang
21 Jessica Chang, CSR
Texas CSR 8971
22 Official Court Reporter
6lst District Court
23 Harris County, Texas
201 Caroline, 9th Floor
24 Houston, Texas 77002
Telephone: (713) 368-6077
25 Expiration: 12/31/2015
Jessica Chang, CSR
Official Court Reporter
61st Civil District Court
Tab 9
Proposed order compelling production
Tab 10
Hoffman’s motion to bifurcate
No. 2014-17523
R.BROWN § IN THE DISTRICT COURT OF
§
vs. § HARRIS COUNTY, TEXAS
§
M.D.BROWN, JR., §
INDIVIDUALLY, ET AL § 61'' JUDICIAL DISTRICT
DEFENDANTS' JOINT MOTION FOR BIFURCATED TRIAL
ON EXEMPLARY DAMAGES
Defendants Robert S. Hoffman, the Law Offices of Robert S. Hoffman, P.L.L.C.,
Jedediah D. Moffett, Jedediah D. Moffett, P.C., Marshall Davis Brown, Jr., and Pavlas &Brown,
L.L.P., (herein "Defendants") respectfully submit this Joint Motion for Bifurcated Trial on
Exemplary Damages as provided by Texas Civil Practice & Remedies Code Section 41.009(a).
1. This is a legal malpractice case in which the Plaintiff, Rachel Brown, accuses the
Defendants of negligence and breach of fiduciary duty in connection with their representation of
Rachel Brown in her divorce. The Plaintiff alleges that she is entitled to recover exemplary
damages and demands an award of exemplary damages from the Defendants.
2. Upon timely request, the Court must provide a bifurcated trial separating the issue
of the amount of exemplary damages from all other issues in the case. See Tex. Civ. Prac. &
Rem. Code§ 41.009(a) & (b); Transportation Ins. Co. v. Mariel, 879 S.W.2d JO, 30 (Tex. 1994).
3. A bifurcated trial is necessary to separate the proof relevant to the liability and
actual damages phase of the case from that which Plaintiff will seek to offer in support of her
exemplary damage claim.
4. This motion is timely because it is filed before the voir dire examination of the
jury.
For the foregoing reasons, Defendants respectfully request that the Court order a
bifurcated trial on the amount, if any, of exemplary damages.
Respectfully submitted,
CUNNINGHAM DARLOW LLP
By: Isl Tom Cunningham
Tom Cunningham
State Bar No. 05244700
Debbie C. Darlow
State Bar No. 05186900
919 Milam, Suite 575
Houston, Texas 77002
Telephone: 713-255-5500
Telecopier: 713-255-5555
ATTORNEYS FOR DEFENDANTS,
ROBERT S. HOFFMAN AND
LAW OFFICE OF ROBERT S. HOFFMAN,
P.L.L.C.
JEDEDIAH D. MOFFETT P.C.
By: Isl Jedediah D. Moffett
Jedediah D. Moffett
State Bar No. 24051069
80 I Congress Street, Suite 400
Houston, Texas 77002
Telephone: 713-333-5800
Telecopier: 713-333-5801
PRO SE AND ATTORNEY FOR DEFENDANT,
JEDEDIAH D. MOFFETT, P.C.
PAVLAS & BROWN, L.L.P.
By: Isl Marshall Davis Brown Jr.
Marshall Davis Brown, Jr.
State Bar No. 03153550
3040 Post Oak Blvd., Suite 1020
Houston, Texas 77056
Telephone: 713-222-2500
Telecopier: 713-961-1209
PRO SE AND ATTORNEY FOR DEFENDANT,
PAVLAS & BROWN, L.L.P.
CERTIFICATE OF SERVICE
The foregoing instrument was served upon the counsel of record listed below by electronic
document transfer pursuant to Rule 2la of the TEXAS RULES OF CIVIL PROCEDURE on October
8, 2014.
Isl Tom Cunningham
Tom Cunningham
Jimmy Williamson
Cyndi M. Rusnak
4310 Yoakum Boulevard
Houston, Texas 77006
Telecopier: 713-223-0001
Ross A. Sears, II
Ross A. Sears, II, P .C.
4310 Yoakum Boulevard
Houston, Texas 77006
Telecopier 713-223-3331
ATTORNEYS FOR PLAINTIFF
10/9/2014 9:33:16 AM
Chris Daniel - District Clerk
Harris County
Envelope No: 2772385
By: KIRBY, TERESA A
No. 2014-17523
R.BROWN § IN THE DISTRICT COURT OF
§
vs. § HARRIS COUNTY, TEXAS
§
M.D.BROWN, JR., §
INDIVIDUALLY, ET AL § 61'1 JUDICIAL DISTRICT
ORDER ON JOINT MOTION FOR BIFURCATED TRIAL
ON EXEMPLARY DAMAGES
On the date set forth below, the Defendants' Joint Motion for Bifurcated Trial on
Exemplary Damages came before the Court. The Court noted that the Joint Motion was timely
filed prior to the voir dire examination of the jury, and determined that the Joint Motion should
be sustained. Accordingly, it is
ORDERED that the trial of this case shall be bifurcated pursuant to Texas Civil Practice
& Remedies Code Section 41.009 into two phases. In the first phase, the jury shall determine (I)
liability for compensatory and exemplary damages and (2) the amount of compensatory
damages, if any. If liability for exemplary damages is established during the first phase of the
trial, the jury shall, in the second phase of the trial, determine the amount of exemplary damages
to be awarded, if any.
SIGNED on this __ day of ______ , 2014.
Hon. Al Bennett
Judge, 61 st District Court
APPROVED AS TO FORM ONLY:
CUNNINGHAM DARLOW LLP
By: Isl Tom Cunningham
Tom Cunningham
State Bar No. 05244700
Debbie C. Darlow
State Bar No. 05186900
919 Milam, Suite 575
Houston, Texas 77002
Telephone: 713-255-5500
Telecopier: 713-255-5555
ATTORNEYS FOR DEFENDANTS,
ROBERT S. HOFFMAN AND
LAW OFFICE OF ROBERT S. HOFFMAN, P.L.L.C.
JEDEDIAH D. MOFFETT P.C.
By: Isl Jedediah D. Moffett
Jedediah D. Moffett
State Bar No. 24051069
801 Congress Street, Suite 400
Houston, Texas 77002
Telephone: 713-333-5800
Telecopier: 713-333-580!
PRO SE AND ATTORNEY FOR DEFENDANT,
JEDEDIAH D. MOFFETT, P.C.
PAVLAS & BROWN, L.L.P.
By: Isl Marshall Davis Brown Jr.
Marshall Davis Brown, Jr.
State Bar No. 03153550
3040 Post Oak Blvd., Suite 1020
Houston, Texas 77056
Telephone: 713-222-2500
Telecopier: 713-961-1209
PRO SE AND ATTORNEY FOR DEFENDANT,
PAVLAS & BROWN, L.L.P.
WILLIAMSON & RUSNAK
By: _____________
Jimmy Williamson
Cyndi M. Rusnak
4310 Yoakum Boulevard
Houston, Texas 77006
Telecopier: 713-223-0001
Ross A. Sears, II
Ross A. Sears, II, P.C.
4310 Yoakum Boulevard
Houston, Texas 77006
Telecopier 713-223-3331
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
The foregoing instrument was served upon the counsel of record listed below by electronic
document transfer pursuant to Rule 21a of the TEXAS RULES OF CIVIL PROCEDURE on October
8, 2014.
Isl Tom Cunningham
Tom Cunningham
Jimmy Williamson
Cyndi M. Rusnak
4310 Yoakum Boulevard
Houston, Texas 77006
Telecopier: 713-223-0001
Ross A. Sears, II
Ross A. Sears, II, P.C.
4310 Yoakum Boulevard
Houston, Texas 77006
Telecopier 713-223-3331
ATTORNEYS FOR PLAINTIFF
Tab 11
Docket-control order
Case No. 201417523
DCORX
BROWN, R INTHE DISTRICT COURT OF
*
vs. ·
HARRIS COUNl;Y, TEXAS
BRQWN; MDJI{''
61st JUDICIAL DISTRICT
*
::. · ,·... :'i.", . ,, . .
.. ,:_,:,:·.:: �: ' .
. .. . . ··- , .
DOCKET CONTROL ORDER
,
-
.
The following docket control order shall apply to this case unless modified by the court. If no date is given below, the
item is governed by the Texas Rules of Civil Procedure.
1. 09/12/14 JOINDER. All parties must be added and served, whether by amendment or third party
practice, by this date. THE PARTY CAUSING THE JOJNDER SHALL PROVIDE
A COPY OF THIS DOCKET CONTROL ORDER AT THE TIME OF SERVICE.
2. EXPERT WITNESS DESIGNATION. Expert witness designations are required and
must be served by the following dates. The designation must include the information
listed in Rule 194.2(f). Failure to timely-respond will be governed by Rule 193.6.
(a) 01/09/15 Experts for parties seeking affirmative relief.
(b) 02/20/15 All other experts.
3, STATUS CONFERENCE. Parties shall be prepared to discuss all aspects of the case,
including ADR, with the court on this date. TIME:
Failure to appear will be grounds for !'.Jismissal for want of prosecution.
4. DISCOVERY LIMITATIONS. The discovery limitations of Rule 190.2, if applicable,
or otherwise of Rule 190.3 apply unless changed below:
(a) Total hours per side for oral depositions.
(b) Number of interrogatories that may be served by each party on any other party.
5.. . . . .· ALTERNATIVE DISPUTE RESOLUTION..
(a) 10/13/14 · By this date the parties must either (1) file an agreement for ADR stating the form of , .
ADR requested and the name of an agreed mediator, if applicable; or(2) set an objection
to ADR. It no agreement or objection is filed, the court may sign an ADR order. .
(b) 03/01/15 ADR conducted pursuant to the agreement of the parties must be complefed by this date.
6. 03/31/15 DISCOVERY PERIOD ENDS. All discovery must be conducted before the end of
the discovery period. Parties seeking discovery must serve requests sufficiently far in
advance of the end of the discovery period that the deadline tor responding will be
within the discovery period. Counsel may conduct discovery beyond this deadline by
agreement. Incomplete discovery will not delay the trial.
7. DISPOSITIVE MOTIONS AND PLEAS. Must be heard by oral hearing or submission.
i�� 04/10/15 If subject to an interlocutory appeal, dispositive motions or pleas must be heard by this date.
Summary judgment motions not subject to an interlocutory appeal must be heard by this date.
(c) Rule 166a(i) motions may not be heard before this date.
8. CHALLENGES TO EXPERT TESTIMONY. All motions to exclude expert testimony
and evidentiary challenges to expert testimony must be filed by this date, unless
extended by leave of court.
9. 04/10/15 PLEADINGS. All amendments and supplements must be filed by this date. This
order does not preclude prompt filing of pleadings directly responsive to any timely
filed pleadings.
10.
Parties shall be prepared to discuss all aspects of trial with the court on this date.
TIME: Failure to appear will be grounds for dismissal for want of prosecution.
11. 04/27/15 TRIAL. If not assigned by the second Friday following this date, the case will be reset.
SIGNED
11111lh1'• 11 1111·1lh1.111111 ·111111 ·1 11 ·I11 1• 1111··I·'11I •11111
ALFRED H. BENNETT
Tom Alan Cunningham
919 Milam St Ste 575 Judge, 61ST DISTRICT COURT
Houston TX 77002-5430 5244700 Date Generated 10/13/2014
1
JCV002
rev.11202006
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; . .
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Tab 12
Chart of net-worth discovery standards
in other jurisdictions
Net Worth Discovery Requirements
in Certain Other States
State Case or Statute Requirement
Alaska Alaska Stat. §09.17.020(e) No net worth discovery until after the jury
determines the defendant is liable for
punitive damages.
Alabama Wilson v. Gillis Advertising Defendant’s financials only disclosed after a
Co., 145 F.R.D. 578 (N.D. finding of liability for punitive damages.
Ala. 1993); Ala Code § 6-
11-23
Arizona Larriva v. Montiel, 691 P.2d “There must be prima facie proof of a
735 (Ariz. App. 1984); defendant’s liability for punitive damages
Arpalo v. Figueroa, 276 before his wealth or financial condition may
P.3d 513 (Ariz. App. 2012). be discovered.”
California Cal. Civ. Code. A prima facie showing of liability for
3295(a)(1),(2); Cobb v. punitive damages required before disclosure
Superior Court, 99 of a defendant’s wealth can be compelled.
Cal.App.3d 543 (1980)
Colorado Leidholt v. District Court of Prima facie proof of right to punitive
Denver, 619 P.2d 768, 771 damages is necessary to discover financial
(Colo. 1980); Colo. Rev. information.
Stat § 13-21-102
Delaware Bryan v. Thos. Best & Sons, “Naked allegation” of entitlement to
Inc., 453 A.2d 107 (Del. punitive damages not enough to obtain
1982). financial discovery – must “lay a factual
foundation” proving to the Court “it is
reasonably likely that a triable issue” on
liability for punitive damages exists.
District of John Does I-IV v. Yogi, 110 Discovery of financial status should not to
Columbia F.R.D. 629 (D.D.C. 1986); be turned over until necessary to prove up
Skinner v. Aetna Life Ins. punitive damages; discovery not permitted
Co., 38 FedR.Serv. 2d 1194, absent a prima facie showing of punitive
1195 (D.D.C. 1984) damages.
Florida Fla. Stat. Ann. §768.72(1); Must show a reasonable basis for recovery
Estate of Despain v. Avante of punitive damages to add to complaint. If
Group, Inc., 900 So. 2d 637 permitted, financial worth can be
(Fla. App. 2005). discovered.
Georgia Smith v. Morris, Manning & Requires an evidentiary showing of a
Martin, L.L.P., 666 S.E.2d factual basis for punitive damages before
683, 697 (2008) personal financial information is disclosed.
(quoting Holman v.
Burgess, 404 S.E.2d 144,
147 (1991)
Iowa Iowa Code Ann. § Net worth discovery not permitted “until
668A.1(3) such time as the claimant has established
that sufficient admissible evidence exists to
support a prima facie case” for punitive
damages.
Nevada Hetter v. Eighth Jud. Dist. “Before tax returns or financial records are
Court, 874 P.2d 762 (Nev. discoverable on the issue of punitive
1994). damages, the plaintiff must demonstrate
some factual basis for its punitive damage
claim.”
New Jersey Gierman v. Toman, 185 Prima facie proof of the right to recover
A.2d 241 (Law Div. 1962); punitive damages is a prerequisite to
Hudak v. Fox, 521 A.2d 889 financial discovery.
(N.J. 1987)
New York McNamee v. Clemens, No. Discovery of net worth information is
09 CV 1647(SJ), 2013 WL premature where summary judgment may
6572899, at *8 (E.D.N.Y. negate need for disclosure.
Sept. 18, 2013) (citing
Pasternak v.
Dow Kim, 275 F.R.D. 461,
463 (S.D.N.Y 2011)).
North Carolina Patrick v. Williams, PA, 402 Allowing discovery of net worth after court
S.E.2d 452 (N.C. 1991) reversed summary judgment on punitive
damages.
Ohio Rupe v. Fourman, 532 F. In a bifurcated trial, discovery of personal
Supp. 344, 350-51 (S.D. financial status for punitive damages claim
Ohio 1981) is not permitted until the defendant’s
liability is established.
Oklahoma State of Oklahoma v. Tyson Production of financial information
Foods, Case No 05-CV- appropriate after dispositive ruling on
329-GKF-PJC (N.D. Okla. punitive damage claim.
2009) (citing Toussaint-Hill
v. Montereau in Warren
Woods, 2007 WL
3231720 at *1 (N.D.Okla.
Oct. 29, 2007).
Oregon Or. Rev. State. 31.725 Requires court approval to plead punitive
damages based on admissible evidence of
specific facts to avoid a directed verdict. If
pleading allowed, net worth discovery
permitted.
Pennsylvania Chenoweth v. Schaaf, 98 Discovery barred absent factual allegations
F.R.D. 587, 589-90 (W.D. demonstrating a “real possibility” that
Pa. 1983) punitive damages will be an issue.
Rhode Island Palmisano v. Toth, 624 After Plaintiff makes a prima facie showing,
A.2d 314, 321 (R.I. 1993) in an evidentiary hearing, that a case for
punitive damages exists, net worth
discovery permitted.
South Dakota S.D. Codified Laws If court finds by clear and convincing
§21-1-4-1 evidence that there is a reasonable basis to
believe willful, wanton, or malicious
conduct exists, financial discovery
permitted.
Tennessee Breault v. Friedli, 610 Must show that a factual basis for punitive
S.W.2d 134, 139-40 (Tenn. damages exists after merits discovery.
App. 1980); Wells v. Epes
Transport System, Inc.,
2006 WL 1050670 (E.D.
Tenn. 2006)
Wyoming Campen v. Stone, 635 P.2d Requires a prima facie showing that a viable
1121 (Wyo. 1981) cause of action exists for punitive damages.